Strategies and Policies to Protect and Strengthen Commons in Urban Environments

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* Report: Urban Commons Shared Spaces. By Jens Kimmel, Sophie Bloemen and Till Gentsch. Commons Network and Raumlaborberlin, 2018



by Jens Kimmel, Sophie Bloemen and Till Gentsch:

"We will now present strategies & concrete policies to protect and strengthen commons in urban environments on the basis of our findings in Amsterdam and Berlin.

We have identified two levels of solutions:

  • Creating a commons sector: Legal norms

i.e. Legal recognition, policies and new forms of ownership.

  • Collaborative city: Processes and dialogue

i.e. Relationships, dialogue and bureaucracy.

Creating a commons sector: Legal norms

Recognition of Commons as category

The concept of commons and their potential role in urban development is not yet widely known among most administrators and politicians of Amsterdam and Berlin. In order to truly recognize the commons domain it needs to be recognized as a category by policymakers and used and referred to in policy documents, legal texts and municipal notes. We would propose to develop and add ‘Commons’ as a legal category, through which it becomes a valid third domain - next to the public and private domains - to explore when urban development is concerned. Moreover, specific commons initiatives can be involved - just like public, semi-public and private actors - and given a role in order to address pressing local social, environmental and cultural issues.

Securing space for commons and commoning

Whereas the Amsterdam Broedplaatsen policy temporarily secures space for ‘creatives’, we envision a policy with a broader scope that targets existing communities and helps to create new ones. Amsterdam and Berlin are decor to the re-invigoration of community initiative but, at the same time, witness the sell-off and disappearance of shared spaces: building demolish a former school or office or accept another commercial terrace on a public square.

Example: Naples’ commons areas

Naples’ municipal government recently passed the Resolution no. 446/2016 whose objective is: “the identification of areas of civic importance ascribed to the category of the commons”. Vacant public and even private buildings – if for three times within one year the owner does not reply – are identified as ‘’common good’’ and, as such, made available to community initiatives.

Example: Right to Bid

The Right to Bid, one of the so-called Community Rights of the UK, lays down the procedure by which neighbourhoods nominate buildings or public spaces as Assets of Community Value (ACV), defined as ‘’a local building or piece of land which the community considers to be of particular value to the local community’’. When the owner of an ACV wants to sell or demolish the property, the local government must be informed which, in turn, must pause the process and give the community the time and opportunity to make a first ‘bid’: a proposal to develop and use the building or piece of land collectively.

Example: Re-municipalisation: Vorkaufsrecht

Housing as a Commons. In Berlin a long-existing judicial tool has recently been reapplied to the housing market. The so-called Vorkaufsrecht constitutes the remunicipalization of housing in the city. It states that city boroughs must approve pre-sale market prices in ‘areas of conservation’.

The boroughs juxtapose sales prices and rents and, if the former shows a disproportionate disconnect with the latter, hold the right to stop the sale and set a lower price. Usually public housing corporations are prioritized as buyers of the now cheaper properties. By using the Vorkaufsrecht t take houses out of the heated market, housing is remunicipalized and slows down speculation and gentrification.

Property forms accommodating the commons

When city space – buildings, land or public space – is categorized as a commons, being neither private nor public property, who then ‘owns’ these spaces? From a commons point of view the answer would be the community understood in the broadest sense, including members new and old, permanent and temporary, and those who would want to use it collectively to develop initiatives that add social, cultural or ecological value to their neighbourhoods. The possibility of people ‘owning and managing city space together’ city space depends on the availability of adequate legal entities that accommodate commons. Such property forms would allow people to secure buildings and public spaces for commoning in the long term and fend off market speculation and reprivatization. To do this, we suggest to explore ownership structures and propose a few directions of inquiry and inspiration.

1. Community land trusts

A community land trust (CLT) is a non-profit, community-based organization designed to ensure community stewardship of land. A CLT is a neutral and sustainable model for affordable housing and community development that was born in the Unites States and slowly spread to Canada and the UK over the past 40 years but was not, however, ever introduced in Germany or the Netherlands.32 CLTs are shielded from the grievances of the market as ownership by a single person, public or private, is impossible. Instead, the land is owned collectively and individuals enter into lease agreements with the community. CLTs secure tenure for community members while at the same time maintaining affordability. Oftentimes, CLT boards are composed of community members allowing for direct control over city spaces.

Example: St. Clement’s community land trust

After years of campaigning by the East London Community Land Trust (ELCLT), the former St. Clement’s hospital in East London was redeveloped into a CLT housing project consisting of 23 family homes. With the project, the ELCLT has succeeded in detaching housing prices from the property market and, instead, established a link with local income to create affordable family homes.33

2. Legal personhood for city space

An area rather uncharted yet worth exploring is one in which city space is not owned at all by attributing legal personhood to parks, squares or even buildings itself. This will make it impossible to own, buy, sell individually or use exclusively the city space in question. The advantage in terms of protecting commons in the urban environment is that such spaces will no longer be subject to the profit-driven grievances of private or public owners and, hence, provide a long-term fertile ground for community-based practices. This legal approach to city space assumes that communities using the building or park are fluid, with permanent and temporary members entering and exiting continuously and acquiring user rights flexibly.

Example: New Zealand’s national parks and rivers

New Zealand provides an interesting example of new legal models for the commons. A former national park as well as the third largest river in the country have been granted legal personhood after negotiations between the New Zealand government and Maori groups culminated in the Te Urewera Act 2014. The decisions were inspired by the Maori philosophy that views and treats rivers, mountains and meadows as living entities rather than property.34

3. Commoning using current legal forms

Each country in Europe has its own juridical palette of ‘legal persons’, composing of, for instance, associations, foundations and cooperatives. Many have been used in different contexts to allow for city space as a commons. Given the huge diversity among commons initiatives and host countries, some might benefit more from being governed as a foundation, while others have more chance of being successful as a cooperative, while still others are organized more complexly using different legal forms and multiple layers of owners, stakeholders and participants. In other words, it is hard to find the ‘one-size-fits-all’ ownership structure that fits commons initiatives in the city in general. As a source of inspiration, therefore, let us give three examples of commons initiatives that work(ed) with different existing legal forms in order to develop.

Example: The foundation

The ‘House of the Neighborhood’ De Meevaart in the East of Amsterdam is one of the few examples in the city that has been developed specifically as a commons. De Meevaart is formally governed by the foundation called Meevaart Ontwikkel Groep (MOG), which strictly maintains a facilitative role while leaving the exploitation of and programming in the property to neighbours and citizens of the ‘Indian Neighborhood’. Despite the commons approach, ownership is still in the hands of the housing corporation De Alliantie.35 In Switzerland, in contrast, the Trias Foundation takes out loans and purchases land lots including the buildings on it as to provide community groups with the necessary spaces to develop their social and cultural initiatives. It ‘separates the ownership of land and buildings’ by leasing the land to them – which is used to repay Trias’s debt – hereby granting them ownership over what is built or grown on it.

Example: The limited-liability company and the association

The Mietshauser Syndikat is a German joint venture that has been deploying different, collective ownership structures as of the early 1990s, mostly using it to prevent significant rises in housing prices and applying it to cooperative housing projects across Germany. Technically, the Syndikat uses the legal entity of Limited Liability Company to facilitate groups of people – organized as an association – wanting to buy a house together but lacking the necessary resources without starting capital. Every housing association is veto-carrying member in the general Syndikat which makes it hard if not impossible to reprivatize.

Example: The cooperative

European cities have a long and rich history of the use cooperatives as a legal form, especially in Amsterdam. They have been used in various pockets of society such as food production and distribution, housing, youth and elderly care and even banking (not necessarily producing commons) but also, more recently, city space.

The commons initiative Open Coop in the North of Amsterdam did flourish both as a collectively managed home base of a group of artists and as a central and cohesive force in its neighbourhood. The cooperative had to abandon the idea of full ownership in 2015 due to, the municipality’s unwilling stance toward selling off land to ‘unorganized groups’.

Civic procurement

Recognizing commons both politically and legally would open the door to establishing the right of civic entities to take responsibility over their environment. Competent community groups in Amsterdam and Berlin are already performing several public tasks and services without proper recognition and corresponding funding. Whereas semi-public and private entities have built up institutional status in public service procurement (e.g. energy supply, physical and psychological healthcare, poverty reduction), the civic realm cannot yet count on such treatment and, hence, social value is easily lost. In the Netherlands, the Informatieblad Maatschappelijk aanbesteden (Information Sheet Civic Procurement38 ) has been the start of a shift toward ‘‘civic procurement’’ of public services through the ‘‘inevitable process’’ of turning to flexible, social value-focused communities as opposed to bureaucratic and cost-efficiency-focused, ‘professional’ organizations. We suggest to legally codify civic procurement by community groups and take the first steps toward implementation on the municipal level.IX

Example: Right to challenge

The Community Right to Challenge, part of the UK’s Localism Act, constitutes the right for community groups to submit an expression of interest in running services of local authority and fire and rescue authorities on behalf of that authority.’ Whenever people feel they can deliver the service better, more efficient, they can present their proposal to which the local authorities are obliged to listen.

Example: United Kingdom Public Services Bill

Already proposed by conservative MP Chris White in 2012, the Public Services Bill requires public authorities at the early stages of public service procurement to weigh in the economic, social and environmental consequences of the contact. The law requires contractors to serve the community and emphasize social rather than commercial value. Community-based social initiatives (or the Urban commons) naturally qualify as they are rooted in community and operate on a non-profit basis.

Collaborative city: Processes and dialogue

The common thread of commoners who organize activities using Amsterdam’s and Berlin’s buildings, parks and squares, and try to collaborate with the municipality or its boroughs, is a practical one: frustration over day-to-day bureaucratic hurdles put up by the administrations that make operating unnecessarily hard. At the same time, these obstacles offer opportunities to facilitate and strengthen Urban commons on the process level.

Civil servants for the Commons

Commoners and their initiatives would benefit much from having central points of contact within the municipality instead of having to communicate and deal with different departments and administrators, as is the situation today. These contacts should have a good overview of the sometimes intricate jungle of relevant rules and regulations, and might be granted extra autonomy in managing permits and budgets as to facilitating the work of commoners effectively.

Ideally, these positions should not be part of a single department, such as social or economic affairs, but act as an independent ‘commons agency’ as to fully acknowledge the holistic nature of the urban commons, which simultaneously relate to the social, economic, environmental and cultural domains.

Example: Gebiedsmakelaar Amsterdam

Here we can take the Amsterdam example of what it calls ‘gebiedsmakelaars’: civil servants responsible for connecting with, facilitating and keeping in touch with citizen initiatives in their neighbourhood. Although the effort to bridge the administrative world and civil society people is exemplary, the ‘gebiedsmakelaars’ are currently at the bottom of the municipal hierarchy and, hence, lack real power and budget necessary to be truly effective.

Budgets and funding

A general frustration among commoners concerns funding. On the one hand, there is the problem of bureaucracy which strictly separates municipal departments, their tasks and their budgets. While, more often than not, commons projects fall in different policy categories (e.g. poverty, youth, integration, culture, healthcare, social cohesion, sports, sustainability), city budgets are predominantly demarcated along clear departmental lines.

On the other hand, time-consuming evaluation procedures are in place in Amsterdam as well as Berlin that require commoners to invest a disproportional chunk of their time on paperwork and reporting. In the words of one interviewee: “the time I spend on the evaluation cost me half the subsidy”. While a proper application mechanism is necessary when public money is concerned, these funding structures clearly present big obstacles to commoners and their initiatives.

Hence, we recommend to relieve to the largest extent possible the bureaucratic burden by

i) integrating departmental budgets into a ‘’commons’’ or ‘’community’’ fund and

ii) installing a ‘minimal paperwork evaluation’ procedure for smallscale funding.

Example: Decide Madrid and Budget Partcipatif Paris

Both the French and the Spanish capital have been experimenting with participatory budgeting on quite an impressive scale. In both cases, approximately 100 million euros was distributed through online portals where the cities’ inhabitants suggested proposals, voted on them and eventually decided how to spend the public money.

Participatory budgets in both cases are no longer structured along strict departmental lines but rather concerns an integrated public fund which various initiatives and proposals can appeal to. While this provides clarity and relieves the application process of some of its heavy administrative burden, demanding evaluation procedures often remain in place.

Example: Breda Begroot

In Breda, a small city in the South of the Netherlands, the municipality has reached a next phase in borough budgeting after a succesful pilot in two of its boroughs which started in 2015. Currently, the policy is being extended and implemented in six other boroughs. Breda Begroot gives citizens transparency over borough budgets and a stake in deciding how the public money is spent by organizing events and playing the so-called ‘course card game’ which helps to flesh out concrete priorities.

Reducing regulatory burdens for commoners

Many commoners in both Amsterdam and Berlin run into a vast regulatory web when starting an initiative. As a result, they find themselves dealing with countless rigid permit procedures, such as those regarding the temporary use of public space, the selling of food and drinks, fire security, street advertisements, and noise nuisance. Moreover, such procedures might require commoners to get into the details involved in the planned activity regarding, for example, the specific time window, number of attendees, the format and even the outcomes. In contrast, however, commons initiatives can be open-ended and adaptive processes. An initiative, like a community art exposition or an outdoor neighbourhood market is often the start of an open process, which will be shaped by the members of the community that is created. Predefining the process and its outcomes will likely undermine the exercise. While regulation in the public domain is not redundant, the work of commoners would benefit much when regulatory burdens would be significantly mitigated and take into account the open-ended character of commons initiatives.

Example: Denmark’s Burden Hunter

The Danish business sector provides an interesting source of inspiration for what ‘cutting red tape’, or mitigating regulatory burdens, could look like. Internationally praised for their ‘smart regulation’, the Danish Business Authority has managed to identify redundant obstacles for business entrepreneurs in various sectors of the economy and eliminate them. To do so, it has set up a ‘cross-governmental innovation unit’ called Mindlab which maps barriers and obstacles resulting from excessive state bureaucracy using mixed-methods studies of operating processes of companies.

Example: Freezones and umbrella permits in Amsterdam

Amsterdam’s city boroughs are experimenting with so-called regulatory freezones. As of 2015, three freezones have been started in the city boroughs West, Nieuw-West and South which means that municipal regulations and permit requirements for all sorts of issues will be loosened for a period of two years.44 The umbrella permit, first issued by the city borough Amsterdam North for the hugely successful commons Noorderparkkamer (a community-based social and cultural hub in the Noorderpark), was designed to eliminate regulatory burdens for individual initiatives using Noorderparkkamer’s spaces. Instead, one permit has been issued comprising all activities and commoners using the space together.

Urban stewardship

Urban planning and maintenance are often a centralized and exclusive process, and need to become more inclusive and decentralised. A step in this direction is the policy by the dutch government called ‘omgevings visies’ (visions for the urban environment), which will be implemented between 2019 and 2021. As opposed to its prescriptive policy predecessors – ‘this block will have so many houses, so many schools and so many sport fields’, it is largely descriptive - ‘this block will be used for housing, education and sports’ - which in theory provides a nice degree of flexibility and room for initiative. However, as citizen participation is not made explicit in the law, it seems that they will play only a marginal role – as opposed to ‘professional’ initiative – in the development of both omgevingsvisies and city blocks.

We suggest to make this role explicit. Examples are ‘citizen juries’, gebiedstafels (borough platforms) or neighbourhood budgets.46 There are many ways to facilitate a significant role for citizens in the maintaining and caring for public spaces, buildings in their neighbourhood. In any case, the process of neighbourhood planning and urban stewardship, we argue, should be transparent, include existing and new communities at the very early stages and structurally facilitate their participation. Moreover, in order to maintain flexibility at the end of planning cycles, we suggest to develop a simple procedure for initiatives deviating from conventional urban planning based on their added social value and local connections.

Example: Bologna’s collaboration agreements

The city of Bologna developed with its “Regulation on the Collaboration between Citizens and the City for the Care and Regeneration of Urban commons” an alternative to a rigid, top down administrative approach. Collaboration among the city officials and civil initiatives is manifested through “non authoritative administrative acts”. Today about 300 different “collaboration agreements” – contracts between the Bolognese city government and citizen initiatives have been made, including, for example, a self-organized Kindergarten an urban agricultural coop.47 The policy is not perfect, however. Despite the huge energy it elicits in Bolognese civil society and the alternative it offers to mere top down government, it fails to move away significantly from a centralized power structure with an emphasis on temporality – giving initiatives a few years to try before the next one moves in – and to a model in which public finances and decision-making shifts to local communities.48

Example: Resolution 99 from Utrecht

The city council of the Dutch city Utrecht has, already in 2016, passed Resolution 99 which focuses on inclusive urban planning. A few points from the resolution:

1) take social value into consideration in urban development;

2) work on establishing open, inclusive planning processes from projects’ start-up phases;

3) establish a connection between the development and the use of buildings and blocks;

4) work on achieving a level-playing field for local initiatives and developers."