“Property is conflict,” insist legal theorists Michael Heller and Hanoch Dagan.1 They argue that the concept of property rights is, at its core, the management of conflicts between people and conflicts of interest. While this theoretical lens is clearly articulated in legal scholarship, it has long been an unstated theme in design and planning discourses. For at least two centuries, the trope of spatial exploitation and the exclusion of the working classes in cities under private-property systems has been a hallmark of progressive urban thought, from Frederick Engels and Jacob Riis2 to Catherine Bauer and Lewis Mumford.3 The argument is a familiar one: left unchecked, private land leads to the tyranny of rent-seeking; while the state, on the other hand, is an organ of reform, improving the lives of urbanites through regulation and public development. This simple premise belies the complications which flow from it; an equally familiar set of questions and entanglements related to the development of the urban environment. Who defines the public good?4 How do we combat decades of neglect in public projects? How do we address the legacy of racial violence historically accompanying these types of interventions that has soured government-led urban development in both policy circles and public imagination and has seeded mistrust in communities that need them most?5 6 Even the more recent promise of public-private partnerships and market-based solutions (bolstered by subsidies and vouchers) is plagued by chronic underfunding,7 skewed towards private interest,8 and marked by discriminatory rental practices9 and the quagmire politics of NIMBYism.10 Considering the conflicts of urban development today, all of this may be moot. Not only is state-financed acquisition and development of public land increasingly unimaginable in a country suffering from laissez-faire ideological dogmatism and seemingly insurmountable legislative paralysis, but private-property solutions remain just as elusive. If contemporary urban practitioners and theorists want to address what is urgent in our urban environment—from the ongoing issue of access to housing to more recent concerns about gentrification, displacement, sustainability, and resilience—where do they turn? Again, borrowing Heller and Dagan’s legal framework of the “liberal commons,” we might begin to understand a broad spectrum of non-binary property regimes—that run counter to the tired public versus private dialectic—from cooperatives to homeowner associations to community land trusts.11 Only by harnessing the precise legal definition of real property to understand how specific ownership structures impact urban development outcomes in practice, can we imagine methods for dealing with conflict and empowering design professionals to engage in social practice.

OCCUPY DESIGN
The trauma of the subprime mortgage crisis sparked renewed attention within architectural discourse about design’s relationship to private property and the real estate industry. In 2010, The New City Reader: A Newspaper of Public Space dedicated an entire issue on real estate edited by Mabel Wilson and Peter Tolkin. Wilson and Tolkin critiqued the dominance of private property in popular culture, which privileges the politics of NIMBYism over “a more robust conception of land stewardship as part of a shared public realm.” The stifling primacy of private property similarly frustrates Reinhold Martin, who after curating MoMA’s exhibition Foreclosed: Rehousing the American Dream lamented the degree to which participating architects undertook the show’s explicit challenge to use the exhibition as means to imagine a more active role for the state in the provision of housing. Blaming the impact of privatization on design culture, Martin wrote, “can we no longer imagine architecture without developers?”12

The New City Reader: Real Estate (November 2010). Guest edited by Mabel Wilson and Peter Tolkin. Courtesy of Kazys Vernalis and Joseph Grima.

The New City Reader: Real Estate (November 2010). Guest edited by Mabel Wilson and Peter Tolkin. Courtesy of Kazys Vernalis and Joseph Grima.

Foreclosed: Rehousing the American Dream, at the Museum of Modern Art, New York, NY. Photograph courtesy of Jason Mandella.

Foreclosed: Rehousing the American Dream at the Museum of Modern Art, New York, NY, 2016. Photograph by Jason Mandella.

Answering this provocation, Raphael Sperry and Amit C. Price Patel (both from Architects Designers and Planners for Social Responsibility) asserted the need for increased public policy initiatives to prompt private resources to provide for housing under a rights-based framework; and designer and urbanist Liz Ogbu advocated to de-essentialize public and private in favor of a new hybrid of  small, socially oriented, micro-entrepreneurial endeavors, well-positioned to attack problems like affordability.13 Critical of the market as a whole, and by extension policies geared towards market engagement, planner Tom Agnotti argued to reject the “dictatorship of the developer” and to engage in creative politics instead of creative design spurred by the seductive illusion of control through dubious spatial determinism.14 Taken together, these arguments clarify the importance of the values behind real estate development and regimes of ownership in order to serve the design community’s desire to foster more progressive outcomes. What is less clear, however, is whether the individual practitioner has recourse to address these issues beyond political advocacy.

Breaking down and humanizing the monolithic figures of “the state” and “the developer” is crucial to dismantling the false ideological choices that so often dominate discussions of urban development and that overshadow the complex interplay of actors that govern both public and private actions in the city.15 In “Public and Common(s),” Reinhold Martin recognizes the need to depoliticize state-led interventions—defining the state as a technology rather than an ideology. Martin follows Michael Hardt and Antonio Negri in replacing terms like “the people,” “the state,” “private,” and “public” with less politicized ones, using instead “multitude, commonwealth, singularity, and commons.”16 He also focuses on land itself, noting that real property is often overlooked by architects, and proposes a “working bibliography” on the history of real estate as a starting point to better understand one of the core determinants of practice.17 Immersed in this discourse, a practitioner can understand the way property regimes and their resultant development paradigms define the terms of their practice unencumbered by the ideological baggage that would otherwise prevent them from embracing more communitarian approaches.

THE LIBERAL COMMONS
By appropriating the technical precision of legal language as it relates to definitions of ownership, we might arm the practitioner with an operable vocabulary to engage the conflicts that emerge from the social and economic positioning of the profession. Catherine Ingraham seems to believe as much, directing us to the Black’s Law Dictionary definition of property as “a singular and exclusive dominion, in total exclusion of the right of any other individual in the universe”18 —itself a rephrasing of William Blackstone’s foundational (and wonderfully evocative) eighteenth-century definition of property as “a sole and despotic dominion.”19 In practice, however, this maximalist meaning is full of qualifications, such that “real property” is understood, not as the land itself, nor simply dominion over it, but rather a “relation among people with regard to things.” Rather than being synonymous with land, the legal construction of “real property” is a site of struggle itself; a contested bundle of rights relating to tangible things like land.20 Or as Ingraham puts it more explicitly, “property is agency.”21 It is this notion that designers might participate in the definition of property that directs us to Heller and Dagan’s “liberal commons”—a structured way to approach real property as a contested construction.22

In “The Liberal Commons,” Heller and Dagan introduce us to the three forms of property that constitute the standard conceptual map of property law. First, on the liberal end of the spectrum (i.e. concerned with private interest) is private property, which though characterized by the Blackstonian definition discussed earlier, has never completely articulated any real-world regime of ownership. The second form, commons property—as portrayed in Garrett Hardin’s archetypical “Tragedy of the Commons”—is often assumed to be a condition in which resources are open to all. However, Heller and Dagan argue against this mischaracterization. Rather than describing it as universal “open access,” or as anarchy and the absence of any regime of ownership, they use commons property to describe the condition in which resources are “owned or controlled by a finite number of people who manage the resource together and exclude outsiders.” The last category in their tripartite classification of property is state or collective property, which asserts that resources must answer to the needs of society as a whole and privileges the state as an entity with “a special status or distinct interest.” Heller and Dagan remark that with the collapse of state socialism and the increasing influence of the politics of privatization, state and commons property have been conflated conceptually—establishing a false dichotomy between privatization and communitarian utopianism.23 This dualism precludes hybrids like Heller and Dagan’s liberal commons, a property regime that in many ways answers Ogbu’s desire to break down the essentialness of public and private categories.

Similar to traditional commons property, the liberal commons represents a regime of ownership over resources that privileges a finite, bounded constituency to the exclusion of those outside the group. However, the liberal commons must “preserve exit:” the right of its members to leave the commons. In addition to preserving individual choice in a liberal-democratic context, the threat of exit is also the primary means of “disciplining social organizations” and formulating a regime of resource management that is responsive to its members.24 Heller and Dagan further differentiate the liberal commons by insisting it must demonstrate its worth to its members: maximizing economic value, recognizing social value, and reconciling potential conflicts between these two in a manner consistent with the values and desires of its members.25 The liberal commons must also negotiate potential conflicts between exit and cooperation, through limits on and penalties for exit that acknowledge the cost of losing “commoners” on the organization (finding and socializing a replacement) without impinging on the individual’s right to leave.26 All of this is established through a set of laws (bylaws or contractual obligations) that are not overly burdensome—functioning mainly in the background to reinforce trust and cooperation between commoners without being invoked for most day-to-day operations, and allowing individual decisions to be made that don’t overly impact the commons as a whole.27

This model codifies three discrete benefits for commoners in exchange for relinquishing “sole despotic dominion” over their property. Members are granted the ability to retain individual dominion over certain preordained resource-management decisions; they are given a voice in the democratic self-governing apparatus that sets the rules for collective decision-making; and lastly, they have the option to leave the commons without the burden of harming those that choose to stay.28 In this way, the liberal commons establishes the terms of its own existence and its ability to benefit the people within it.

But to what extent is the liberal commons applicable to architectural practice and urban development more broadly? Insofar as urban land and its development is considered a resource that needs to be managed, architecture—with its ability to structure relationships between users in space and make legible hierarchies and degrees of access—might benefit from engaging the liberal commons as an organizational model for the management of resources.

CONFLICT AND PRACTICE: LIBERAL COMMONS CASE STUDIES
Heller and Dagan insist that the liberal commons is not a tool for perfect consensus, but rather a management regime that realigns interests to foster collaboration between participants.29 This is especially compelling when we consider the potential role of the architect in such a system—a role not unlike Markus Miessen’s “cross-bench practitioner.”30 In his formulation of this figure, Miessen borrows political theorist Chantal Mouffe’s theory of “agonistic pluralism,” whereby conflict between adversarial parties or “friendly enemies” destabilizes oppositional agendas. It is in this resulting realignment, which embraces and harnesses conflict for its creative potential, that Miessen locates the architect’s expanded scope of practice:31

Spatial practice could therefore be described as the melting pot of physical realities, legal and cultural frameworks, political dimensions, philosophical foundations, and everyday life. Integrated design thinking…can be applied to various areas of expertise and performance…Critical spatial practitioners should utilize their repertoire of contextualizing a set of found problems into their spatial, sociopolitical, and socioeconomic context, and propose mechanisms of change that illustrate the local scale vis-à-vis its macro ramifications. These mechanisms of change can be physical, legal or social in nature.32

This definition of practice empowers the architect to directly engage in establishing or reshaping client relationships and organizations. In the context of a liberal commons organization, “mechanisms of change” can be understood as an integral part of architectural practice—a tool box for the architect to either establish a liberal commons organization directly or advise clients to do so. Architectural practice is thereby constructed as a conflictual practice that harnesses the creative power of divergent values for both the design of the organizational structure of the commons as well as the architectural space that bounds it.

In practice, this model could take a variety of forms. Liberal commons organizations vary greatly, ranging from socially-oriented organizations, like communes or even marital relationships, to purely economic enterprises, like homeowner associations (HOAs) and condo boards. While they do not explicitly invoke Heller and Dagan, the following four case studies feature practices that created a diverse range of liberal commons institutions defying conventional wisdom about collectivism.33

Spectrum of liberal commons organizations and generalized methods of conflict resolution, adapted from Dagan and Heller, 2005. Courtesy of the author.

Spectrum of liberal commons organizations and generalized methods of conflict resolution, adapted from Dagan and Heller, 2005. Courtesy of the author.

The work of architects Ted Smith and Kathleen McCormick is illustrative of the potential for intimate connections between design and the contested nature of property and combines a non-essentialized view of common ownership with an expanded mode of practice akin to Miessen’s formulation. Based in San Diego, California, Smith and McCormick began initiating their own projects in the early 1980s, building small, unconventional housing for the world of artists, architects, and musicians around them. Responding to the free market’s failure to provide housing for this demographic, they began building “Go-Homes,” which stood for “the idea that you go home to a house of your own.” The original Go-Homes were small attached units—about 12’ by 20’ with high ceilings—built incrementally and financed with cash. Affordable by virtue of size, the units were also built on single-family lots, the land value of which reflected the selling price of a single-family house—an amount substantially less than the value of six studio units. Smith and McCormick managed to accomplish this by what they called “stealth architecture,” defining the six Go-Homes as suites within an individual “single-family” unit.34

The legality of this scheme is based on the creative interpretation of a precedent set by the 1980 California Supreme Court case City of Santa Barbara v. Adamson. The ruling broadened the legal definition of a family to encompass any number of cohabitating adults; and also decided that more limiting, municipal definitions were unconstitutional on the grounds of the right to privacy.35 Smith and McCormick took advantage of this redefinition, and “opportunities in the code,”36 as an act of architectural “civil disobedience”—reinterpreting existing regulations in order to make their buildings “appear more politically correct than they might actually function.”37

While Smith, McCormick, and other partners like fellow architect-developer Lloyd Russel initially employed a communitarian co-ownership model, they eventually settled on a multi-family rental scheme—one in which the architect-developer retains ownership of the entire project and rents out the suites individually. This made it easier to receive traditional bank financing, as banks are familiar with a four-unit apartment building as an entity and could care less about collectivist arrangements between tenants. By making semantic concessions to the normative logics of project finance, Smith and McCormick were able to provide novel, affordable, and previously unavailable housing without policy overhaul or massive industry-wide reorganization.

Over time, the rental structure in these projects came to define the resident’s relationships both to each other and to the project as a whole. Common amenities were placed under the purview of specific tenancies, establishing a way to resolve “issues of domain” (Smith’s term for spatial conflict) through a form of ownership. While it is tempting to see this solution to resource allocation as privatization, the liberal commons framework makes a case otherwise. The legal organizational structure of a commons—in this case the rental agreements and the bounded domains of the tenancies—is a backdrop or “safety net” that fosters cooperation, not something invoked on a daily basis. The large kitchens and other “common” spaces are available to everyone, with the understanding that the spaces are ultimately managed by a single tenant, creating a sense of responsibility for the “common” facilities out of respect for neighbors.

An early Go-Home by Smith + Others in Del Mar, CA. Courtesy of Ted Smith.

An early Go-Home by Smith + Others in Del Mar, CA. Courtesy of Ted Smith.

“Stealth Architecture” by Smith + Others in Del Mar, CA. Courtesy of Ted Smith.

“Stealth Architecture” by Smith + Others in Del Mar, CA. Courtesy of Ted Smith.

Essex Lofts by Smith + Others and Lloyd Russel in San Diego, CA. Courtesy of Ted Smith.

Essex Lofts by Smith + Others and Lloyd Russel in San Diego, CA. Courtesy of Ted Smith.

A model of potential GoHome housing in New York, NY. Courtesy of Ted Smith.

A model of potential Go-Home housing in New York, NY. Courtesy of Ted Smith.

While an individual could conceivably rent an apartment from Smith and McCormick without realizing that they were living in a collectivist experiment, participation in projects coordinated by Marc Koehler Architects (MKA) in Amsterdam, NL, begins before they are even built. MKA organizes communities of potential buyers—willing to pay between €150 and €800 thousand ($180 and $960 thousand) for apartments of varying sizes—into cooperative developments to construct what Koehler calls a “superloft.” For Koehler, this new domestic typology—which emerged in response to the 2008 economic crisis that halted normative models of development and invited less conventional commissions—offers architects the opportunity to forge new partnerships with users:

…not through opposing the change [in economic conditions], or drifting away in nostalgia, theoretical abstractions, and utopian projects, but rather by approaching the market with innovative ideas and a sound business plan. As the organizer of new networks, they are at the forefront of new developments.38

MKA considers each “user” a separate client, designing each apartment to the specification of the individual buyer. Despite this seemingly consumerist structure, the Superloft design process attempts to reconcile the self-interest of individual commoners with the broader needs of the commons through a framework called “co-creation workshops,” used to develop and organize the needs of the larger group. At an even larger scale, the firm organizes the residents of each Superloft into a broader network online. Consisting of almost 900 people, the macro collective leverages economies of scale to order materials and to operate as an advocacy body and voting bloc in municipal politics.39

As a business model, MKA employs two particularly interesting tactics to ameliorate the risk factors inherent to this mode of architect-as-developer practice. Upon completing the design of the project, the firm sells the project (architectural plans and purchase agreements) to a home builder. This not only lessens MKA’s exposure to construction risk, but lowers its overhead. The deal structure of the Superloft stipulates a 5 percent contingency fee, which if left untouched is split between the firm, the builder, and the residents. In a process that grants so much agency to different individuals, this framework incentivizes each party to keep the project moving forward, averting the possibility of drawn out deliberations.40 Beyond mitigating risk for the practitioner, the contingency fee is a collectivist mechanism that realigns the interests of individual commoners, underscoring the benefit of timely cooperation on design decisions.

Section through a Superloft. Courtesy of Marc Koehler Architects.

Section through a Superloft. Courtesy of Marc Koehler Architects.

Superloft in Amsterdam, NL. Photograph by Marcel van den Burg. Courtesy of Marc Koehler Architects.

Superloft in Amsterdam, NL. Photograph by Marcel van den Burg. Courtesy of Marc Koehler Architects.

Chris Krager’s practice KRDB, based in Austin, TX, was born out of a similar frustration with the limitations of architectural practice conventionally defined.41 It, however, resembles the traditional developer model more than the two previous case studies. Founded in 2001, KRDB’s early projects were built on spec with aid from municipal policy designed to help small builders construct affordable housing. These policies provided interest-free financing for construction, fee waivers, permit fast-tracking, and down payment assistance for buyers in exchange for meeting green building standards and accommodating buyers at 80 percent of area median income.42 43 This methodology, which allowed KRDB to build one-off, sustainable housing speculatively for middle-income families, became less tenable as Austin grew—ultimately pushing KRDB to engage with one of the most conservative typologies in development: the American subdivision.

While is not immediately obvious that housing subdivisions—or more specifically the homeowner associations that govern them—are a form of liberal commons organization, “common interest communities” (which include HOAs and condo boards) are simply a means of reconciling conflicts of interest through a “formal and hierarchal management regime,” one that is typical of liberal commons on the market-oriented end of the spectrum.44 Much of the critical scholarship on common interest communities details the way these organizations are complicit in the privatization of power and the limiting of individual freedom.45 However, for Heller and Dagan, the common interest community, stripped of its cultural and ideological meaning, is simply a technology for managing common resources.

As land prices in Austin increased, Krager and a partner purchased a decommissioned tree farm three miles east of the city to develop a forty-unit case study called SOL, Solutions Oriented Living.46 While the development was intended to be completely net-zero, the limited availability of credit coupled with the depressed sale prospects during the recession made it impossible to mandate solar arrays and drill geothermal wells for each house. That said, every house in SOL is “net-zero capable”—each uses 55 percent less energy than the typical American house and can, with modifications, achieve the net-zero benchmark. Towards the goal of affordability, Krager sold sixteen of the forty units to a housing nonprofit, who in turn resold half of the units with down payment assistance to buyers making 40 percent to 80 percent of AMI47 and rented the remaining for prices as low as $600 per month for a two bedroom.48 Demonstrating the ideological flexibility of common interest communities, SOL’s HOA collects fees for landscape upkeep, but also for routine maintenance of the shared sedimentation/filtration system and sub-grade bio-filtration pond.49 That the individual commoner’s relationship to the commons is primarily organized by the normative logics of private ownership is irrelevant to the ideological positioning of KRDB’s work and the outcomes it achieves.

A Solutions Oriented Living (SOL) house by KRDB in Austin, TX. Courtesy of Chris Krager.

A Solutions Oriented Living (SOL) house by KRDB in Austin, TX. Courtesy of Chris Krager.

The site plan for the SOL community by KRDB in Austin, TX. Courtesy of Chris Krager.

The site plan for the SOL community by KRDB in Austin, TX. Courtesy of Chris Krager.

CONFLICT CONSULTANCY: THE ARCHITECT AS ANALYST
The previous case studies produced an image of the practitioner actively involved in shaping a liberal commons organization through actions normally understood as those of the developer. It is possible, however, for a design practitioner to advocate for the use of liberal commons property regimes without directly engaging in development. Rather than expanding the scope of practice by initiating projects, the architect could instead embrace Miessen’s notion of the cross-bench practitioner—fusing traditional design work with strategic urban consultancy and advising clients holistically about the direction of their projects. It is along these lines that our work at Practice for Architecture and Urbanism (PAU) blends research, planning, and economic analysis with more conventional design exercises. It was in this capacity that we were able to propose the use of a liberal commons organization to structure the redevelopment of a decommissioned power plant site for a large public utility.50

Master plan under a non-disclosure agreement. Courtesy of the author.

Master plan under a non-disclosure agreement. Courtesy of the author.

The neighborhood surrounding the site and the former plant, a predominantly poor community of color, has long suffered from ongoing environmental justice issues and is plagued to this day with higher rates of asthma and cancer than regional averages. While the cessation of emissions from the plant provided some immediate relief to the community, it also made the neighborhood more desirable in general. In a cruel catch-22, original residents now run the risk of being displaced through gentrification processes, such that the long-term benefits of cleanup are not felt by those who bore the burden in the first place. The task of PAU’s master plan for the site was to help guide a rezoning process, which would secure benefits for the community regardless of who purchased the site.

Our research into methods for dealing with this dilemma lead us beyond pure zoning and planning concepts to two potential alternative ownership models for structuring long-term community benefits into redevelopment. The first model originated from the closure of a particleboard factory in Albuquerque, New Mexico, in 1986. Neighborhood and environmental activists from the low-income and predominantly Hispanic sawmill area fought for the closure of the factory only to find that their environmental justice work helped open the neighborhood up to gentrification pressures. To combat this, neighborhood activists formed the Sawmill Community Land Trust (SCLT) to ensure that gains from environmental remediation stayed within their constituent community. SCLT successfully developed almost 100 units of permanently affordable housing in an initial project, with many more in the pipeline.51 As a type of liberal commons organization, community land trust or CLT is an umbrella term for a diverse constellation of nonprofit entities that, generally speaking, hold title to land on behalf of a community—leasing it out to affordable-housing developers or developing it themselves to lease back to local residents.52 The second type of alternative property regime, known as a commercial property endowed park, organizes public land under a public corporation that manages ground leases to for-profit developers.53 The revenues from these commercial leases are used to maintain the parks in perpetuity.54 While, this scheme does not entirely qualify as a liberal commons organization, as it typically involves direct action by the state, it is applicable since the surrounding residents predominantly lived in permanently-affordable public housing and were more in need of public amenities than additional housing subsidies.

PAU recommended that the client create a hybrid of these two organizational types and sell the site to a nonprofit, which would manage the site and negotiate ground leases to private developers—ensuring the community oversight of future development and providing the funds for maintaining public facilities and programming on an ongoing basis. The board of this nonprofit would be comprised jointly of representatives—from the surrounding community, future residents, the utility (our client), and other stakeholder institutions—to manage the potentially conflicting interests of these different groups and ensure mutual benefit.

Development structure for a community land trust (CLT) on a post-remediation, utility site. Courtesy of Practice for Architecture and Urbanism.

Development structure for a community land trust (CLT) on a post-remediation, utility site. Courtesy of Practice for Architecture and Urbanism.

Organization of cash flow for a CLT on a post-remediation, utility site. Courtesy of Practice for Architecture and Urbanism.

Organization of cash flow for a CLT on a post-remediation, utility site. Courtesy of Practice for Architecture and Urbanism.

Exploring possible liberal commons structures had profound impacts on our spatial understanding of the site. During the initial research phase, PAU developed massing strategies in tandem with organizational models of ownership. Notions of ownership and spatial sovereignty—how the surrounding community and new residents would respectively perceive new public spaces—became intertwined with more conventional site-planning drivers like circulation and views. New amenities had to reflect the joint sovereignty established by the ownership of the site—these programs could not be arranged such that the community would perceive them as belonging to the new housing developments, and lines of access from both the neighborhood and the new housing had to be direct and easily legible. These considerations, in turn, drove our economic modeling of the site—guiding the scale and phasing of development and creating a productive back and forth between the project as design exercise and as real estate exercise.

After providing the client with our recommendations and designs, the utility ultimately backed away from direct, hands-on involvement in the future of the site—moved both by concerns that it could violate the terms of their public charter, which prevents them from engaging in any commercial activities not directly related to utility provision (such as real estate development), and by a general apprehension over the lack of direct precedents for such unorthodox methods of development. With no planned involvement in the rezoning process, the utility hopes to embed community benefits less directly: representing them in marketing images for the site and baking some of it into the terms of sale to a private entity. This outcome is unquestionably disappointing, though expected given the structural inertia of organizations as large and as rigidly defined as utilities. While we have to wait for a future project to confirm that a liberal commons organization can be spurred into existence through advocacy and planning consultancy, we remain optimistic—not only because many of the design ideas will carry forward in the next iterations of the site’s plan as we continue to work on the project, but also because our deeper understanding of liberal commons development structures will inform our approach to similar design and planning projects in the future.

PROPERTY AS PRACTICE: A CALL FOR ENGAGEMENT
Thoughtfully implementing the liberal commons as a theoretical framework means reframing the relationship between design practice and real estate development in non-essential terms. By breaking free of the paralyzing false choice between purely public and purely private modes of development, architect-developers as well as the architect-analysts have the ability to produce integrated plans that employ liberal commons structures and appeal equally to community, client, and financing stakeholders. The liberal commons transforms the very conflicts that traditionally cleave disparate constituencies of a project into productive organizing mechanisms in both governance and design. Across the spectrum—from socially-oriented, self-initiated communities to economic commons organizations, like housing subdivisions and community land trusts, to commercial real estate endowed public amenities—design and planning professionals have a wide range of alternative property regimes to implement as means of realizing a broad-based progressive agenda. If properly considered these choices can become an integral part of the larger design process, both determined by and contributing to the myriad factors a designer must consider in their practice.

  1. 1.  Hanoch Dagan and Michael Heller, “Conflicts in Property,” Theoretical Inquiries in Law, vol. 6, no. 1 (2005): 37. ^
  2. 2.  Frederic Stout, “Visions of a New Reality: The City and the Emergence of Modern Visual Culture,” in The City Reader, ed. Richard LeGates and Frederic Stout (New York: Routledge, 2011), 152.  ^
  3. 3.  Alexander von Hoffman, “Housing and Planning: A Century of Social Reform and Local Power,” Journal of the American Planning Association, vol. 75, no. 2 (Spring 2009): 231–244. ^
  4. 4. Paul Davidoff, “Advocacy and Pluralism in Planning,” Journal of the American Institute of Planners, vol. 31, no. 4 (1965): 331–338.  ^
  5. 5.  Michael H. Schill, “Distressed Public Housing: Where Do We Go from Here?” The University of Chicago Law Review, vol. 60, no. 2 (Spring 1993): 497–554. ^
  6. 6. Eric Avila and Mark H. Rose, “Race, Culture, Politics, and Urban Renewal,” Journal of Urban History, vol. 35, no. 3 (March 2009): 335–347. ^
  7. 7. Center on Budget and Policy Priorities, “Cuts in Federal Assistance Have Exacerbated Families’ Struggles to Afford Housing,” (white paper, 2016), http://www.cbpp.org/sites/default/files/atoms/files/4-12-16hous-chartbook.pdf. ^
  8. 8. Martha Minow, “Public and Private Partnerships: Accounting for the New Religion,” Harvard Law Review, vol. 116, no. 5 (March 2003): 1229­­–1270. ^
  9. 9.  Paula Beck, “Fighting Section 8 Discrimination: The Fair Housing Act’s New Frontier,” Harvard Civil Rights and Civil Liberties Law Review, vol. 31, no. 1 (1996): 155–186.  ^
  10. 10.  NIMBYism refers to a trope in community politics dominated by the refrain “Not in My Backyard,” where new urban interventions are opposed because their proximity is considered undesirable. In relation to policy on affordable-housing development, see Advisory Commission on Regulatory Barriers to Affordable Housing, US Department of Housing and Urban Development, “Not in My Back Yard: Removing Barriers to Affordable Housing: Report to President Bush and Secretary Kemp,” (white paper, 1991), https://www.huduser.gov/Publications/pdf/NotInMyBackyard.pdf. ^
  11. 11.  Hanoch Dagan and Michael Heller, “The Liberal Commons,” Yale Law Journal, no. 110 (2001): 549–621. ^
  12. 12.  Reinhold Martin organized a written discussion in Places Journal after Foreclosed to address the issue. See Reinhold Martin, Raphael Sperry, Amit C. Price Patel, Liz Ogbu, and Tom Angotti, “The Housing Question,” Places Journal, June 2012, https://placesjournal.org/article/the-housing-question/^
  13. 13.  Martin et al, “The Housing Question.” ^
  14. 14. Martin et al, “The Housing Question.” ^
  15. 15.  In a special issue of Volume devoted to real estate, Practice for Architecture and Urbanism founder Vishaan Chakrabarti discusses the role of government in defining value within the real estate industry and the subsequent urban outcomes that arise from these policy positions. Jesse M. Keenan examines the role of ethics within the real estate industry in order to restructure its values and produce more progressive outcomes. See Vishaan Chakrabarti, “Value Propositions,” in “The Art and Science of Real Estate,” ed. Arjen Oosterman, Volume special issue, no. 42 (2014): 36–41; and Jesse M. Keenan’s piece in the same issue, “The Art and Science of Real Estate Development,” 12–19. ^
  16. 16.  Reinhold Martin, “Public and Common(s),” Places Journal, January 2013, https://placesjournal.org/article/public-and-commons/. ^
  17. 17.  Reinhold Martin, “Fundamental #13: Real Estate as Infrastructure as Architecture,” Places Journal, May 2014, https://placesjournal.org/article/fundamental-13/. ^
  18. 18.  Catherine Ingraham, “Real Property,” in The New City Reader: Real Estate, ed. Mabel Wilson and Peter Tolkin (November 2010): 5. Published in conjunction with The Last Newspaper, exhibition at the New Museum, New York, NY.  ^
  19. 19.  William Blackstone, Commentaries on the Laws of England (1765–69), vol. 2 (Chicago: University of Chicago Press, 1979): 2.  ^
  20. 20.  Martin, “Fundamental #13.” ^
  21. 21.  Catherine Ingraham, “Property in Common: Co-Disciplinary Nexus Between Architecture and Real Property,” in Volume 42: The Art and Science of Real Estate, ed. Arjen Oosterman (2014): 25.  ^
  22. 22. Dagan and Heller, “The Liberal Commons,” 549–621.  ^
  23. 23.  Dagan and Heller, “The Liberal Commons,” 558.  ^
  24. 24.  Dagan and Heller, “The Liberal Commons,” 568. ^
  25. 25.  Dagan and Heller, “The Liberal Commons,” 572.  ^
  26. 26. Dagan and Heller, “The Liberal Commons,” 574. ^
  27. 27. Dagan and Heller, “The Liberal Commons,” 577. ^
  28. 28.  Dagan and Heller, “The Liberal Commons,” 582. ^
  29. 29. Dagan and Heller, “Conflicts in Property,” 39. ^
  30. 30.  See Markus Miessen, The Nightmare of Participation: Crossbench Praxis as a Mode of Criticality (Berlin: Sternberg Press, 2011). ^
  31. 31.  Miessen, The Nightmare of Participation, 92-93.  ^
  32. 32.  Miessen, The Nightmare of Participation, 183-184.  ^
  33. 33.  The involvement of architects in collectivist housing movements provide another potential model for a type of architect-developer operating on the social end of the liberal commons spectrum, a mode of practice that conforms more closely to conventional notions of collectivism. The dynamic projects built for and by the Self-Built Housing Movement in Berlin over the last 30 years are examples of this type of work. See Kristien Ring and Franziska Eidner, Self-Made City: Self-Initiated Urban Living and Architectural Interventions (Berlin: Jovis, 2013). The focus of this piece, however, is on practices that organize projects using liberal commons principles independent of a larger movement, demonstrating the potential for such methods to empower individual practitioners operating under otherwise normative conditions of architectural practice.  ^
  34. 34.  Ted Smith, “Go-Homes,” lecture at the One Size Fits Some Symposium, Citizens Housing and Planning Council (New York, September 2009), http://makingroomnyc.com/events/2013/01/ted-smith/^
  35. 35.  For more on this ruling, see Thomas H. Kagy, “City of Santa Barbara v. Adamson: An Associational Right of Privacy and the End of Family Zones,” California Law Review, vol. 69, no. 4 (1981): 1052–072.  ^
  36. 36.  Ted Smith, “Making Room: Ted Smith Panel Discussion,” lecture at the Making Room Design Showcase and Symposium, Citizens Housing and Planning Council (New York, November 2011), https://www.youtube.com/watch?v=lKU7ruVkGnk^
  37. 37.  Ted Smith, “The Go-Homes: Personal Extrapolation, Politics and the Alternative Market,” Loud Paper, vol. 4, no. 4 (2009), http://loudpaper.typepad.com/files/broadsheet_final_44.pdf. ^
  38. 38. “Building Community: the Power of Smallness,” Mark Koehler Architects, http://marckoehler.nl/wp-content/uploads/Building-Community.pdf. ^
  39. 39. “Building Community.” ^
  40. 40. Marc Koehler, conversation with the author, March 16, 2015. ^
  41. 41.  Chris Krager, interview with Jeanne Claire van Ryzin, “Texas Two-Step,” Dwell, March 2003, 89. ^
  42. 42.  Krager, “Texas Two-Step,” 89. ^
  43. 43.  The Neighborhood Housing and Community Development, “S.M.A.R.T. Housing Policy Resource Guide,” (Austin, TX: City of Austin, June 2008), https://austintexas.gov/sites/default/files/files/Web_version_SMART_Guide_7-1-08.pdf. ^
  44. 44.  Dagan and Heller, “Conflicts in Property,” 53.  ^
  45. 45.  Political scientist Evan McKenzie has investigated and detailed some of the political, cultural, and structural problems with this institution, which has “become the predominate form of new housing construction in the United States.” Evan McKenzie, Beyond Privatopia: Rethinking Residential Private Government (Washington, DC: Urban Institute Press, 2011), ix. See also McKenzie, Privatopia: Homeowner Associations and the Rise of Residential Private Government (New Haven, CT: Yale University Press, 1994). ^
  46. 46.  Karrie Jacobs, “Off the Grid in the City, a Texas Developer Attempts to Upend the American Suburb,” the New York Times, February 1, 2012, http://www.nytimes.com/2012/02/02/greathomesanddestinations/a-texas-developer-attempts-to-upend-the-american-subdivision.html. ^
  47. 47.  “Company Profile,” Guadalupe Neighborhood Housing CorporationAugust 2013, http://guadalupendc.org/wp-content/uploads/2013/08/GNDC-2013-company-profile.pdf. ^
  48. 48.  Jacobs, “Off the Grid in the City.” ^
  49. 49.  Chris Krager, “Sol Home Features Letter,” Beck-Reit and Sons Ltd., http://www.beckreit.com/SOL.ad.pdf. ^
  50. 50. Unfortunately, due to the highly public and political nature of the project, we are not at liberty to share many specific details about the site or the client. However, even the general facts, which we can share, make for an illustrative case study on the use of liberal commons organizational principles by a design firm that is not directly carrying out development work. ^
  51. 51. “History,” Sawmill Community Land Trust, http://www.sawmillclt.org/about-us/history/.   ^
  52. 52.  John Emmeus Davis and Rick Jacobus, “The City-CLT Partnership: Municipal Support for Community Land Trusts,” Policy Focus Report (Cambridge, MA: Lincoln Institute of Land Policy, 2008), 5. ^
  53. 53.  John L. Crompton, “The Commercial Property Endowment Model for Delivering Park and Recreation Services,” Journal of Park and Recreation Administration, vol. 28, no. 1 (Spring 2010): 103–111. ^
  54. 54.  Brooklyn Bridge Park is one of the more prominent contemporary examples of this type of arrangement. Annual ground leases and payment in lieu of taxes (PILOT) revenue from the development on sites comprising roughly 9 percent of the park’s area, provide 96.1 percent of Brooklyn Bridge Park’s annual operating budget. See “Brooklyn Bridge Park Case Study,” City Parks Alliance, http://www.cityparksalliance.org/issues-a-resources/funding/case-studies/brooklyn-bridge-park^

Skylar Bisom-Rapp is a strategic analyst at Practice for Architecture and Urbanism where he works on urban projects ranging from district plans to targeted architectural interventions. Skylar is also an adjunct associate professor at Columbia University’s Graduate School for Architecture, Planning and Preservation where he teaches a class on Theories of Urban Form with PAU founder Vishaan Chakrabarti. www.pau.studio; skylar.bisom-rapp.com.