On April 6th, 2017, the Westport Community Improvement District, in partnership with the Westport Regional Business League, submitted an application for the vacation of public right of way on Westport Road and Pennsylvania Avenue in the heart of the historic Westport neighborhood. In simple terms, that means that Westport business owners are asking the City to give up ownership of what are now public streets, and turn Westport Road and Pennsylvania Avenue into private property.

This request follows a December 15, 2016 ordinance approved by Kansas City’s Council that outlines a memorandum of understanding about the conditions and expectations for the street vacation, including how, where, and when the public can use the street once it becomes private property.

The reasons for giving these public Westport streets to private businesses vary depending on who you ask and when you ask them, but this latest vacation proposal follows a pattern over many years of attempts to restrict and monetize access to Kansas City’s oldest neighborhood. Proposals to vacate Westport streets extend back to at least 2001.

With this most recent proposal, the primary argument for privatizing public streets is safety. In an April 27th interview with KCUR, Franklin Kimbrough, the executive director of the Westport Regional Business League, framed the concern, “What can we do about ensuring the safety of people going to Westport?” While acknowledging that there was not a specific safety incident in the immediate past that was motivating the vacation, Kimbrough stated that, “When you have large crowds, you become a soft target,” and “We’re trying to be proactive before mass casualties occur.”

While emphasizing Westport is as successful as it has ever been, some business owners are highlighting this threat of violence – gun violence in particular – and promoting privatization of the streets as the way to prevent it. The idea is that business owners would be able to screen, wand, or otherwise restrict access to people entering Westport at times of their choosing, and to charge a fee to enter the neighborhood. The fee would recoup enhanced security costs and provide a way for business owners to monetarily benefit from large numbers of people who visit the neighborhood but do not patronize individual businesses.

Despite the looming threat of “mass casualties,” the language in the City’s fact sheet for the proposed vacation sails a more benign tack. The effort is unironically dubbed the “Pedestrian-Friendly Westport Initiative” and while it also explicitly identifies the need to screen for weapons, the fact sheet goes on to euphemize the “smoother, safer crowd flow” that could be achieved.

Two years ago, another proposal from the Westport Regional Business League was similar in practice, but different in method and more honest in argument. The Business League proposed an entry fee to Westport that would help to pay for security associated with managing large crowds. The threat of violence was dismissed as the motivation at the time. The Pitch reported:

Kimbrough says the change is unrelated to violence in the district. “The total number of incidents is significantly down this year over last year, and way down since 2013,” he says. “This is just a function of our success. We have to provide a certain level of safety and security. And that costs money. And we’ve tapped out our other sources. So yes, it’s fair to say this is coming soon.”

But the 2015 proposal ran into some problems – notably that the streets business owners wanted to charge entry to were public.

As reported in the Kansas City Star:

“They did not disclose their intent to us prior to submitting their permit request,” City Manager Troy Schulte reported to the Kansas City Star. “They submitted a request for (a) catering event which allows for entry fees to be charged, but the presumption for that permit is that the property is private and not public.” Westport has a festival permit that allows public streets and sidewalks to be gated off so officials can check IDs and keep minors out. The permit could also allow Westport to charge a fee to enter establishments within the perimeter. “But they have to maintain free public access, which makes it more difficult to implement,” Schulte said.

But business owners were not deterred. Again, as reported by the Kansas City Star, Kimbrough shared

“After all the lawyers met, ours included, we came to the conclusion there are other ways to potentially skin this cat, and we are exploring those with our friends with the city.”

And so here we are.

The Westport Regional Business League is quick to point out that already, on crowded weekend evenings, Westport businesses use the City’s special event permit process to close Westport streets to car traffic, check IDs, and create a more pedestrian-friendly festival environment. Supporters of vacation are suggesting that once the streets have been vacated, Westport on weekends will work just like it always has, except now with the benefit of fewer guns. That sentiment seems disingenuous at best. Today when streets are closed in Westport they remain public. That means that citizens have certain rights to access and use these public spaces. These rights become problematic if the goal is to restrict and monetize entry. Citizens have a right to assemble, to dress and express themselves how they want, to choose not to patronize a business if that is their preference, and even to carry a gun. None of that is compatible with searching people and charging a fee to enter.

The City emphasizes that public access to Westport Road and Pennsylvania Avenue is maintained after vacation through the memorandum of understanding they have developed with the Westport Regional Business League. However, the language of the memorandum highlights the extent of access restrictions that are anticipated. The image below shows that the identified closures encompass somewhere around 150 days a year, including every Friday and Saturday evening. But the memorandum also indicates that the streets can be closed at any other time that the Westport Regional Business League decides.

While the City loses control of what are now public streets, the memorandum of understanding also commits the City to continue to maintain infrastructure on what would after vacation be private property (with some provisions for cost sharing).

Westport as a Neighborhood, Not a Nightclub

So why does this matter? Who cares if adjacent business owners take care of the streets in front of their businesses? Perhaps the most wide-ranging consequence of privatizing and restricting access to Westport streets is the affect it could have on Westport’s future as a true neighborhood. This effort to make Westport a better-functioning bar district is also poised to make it a less desirable place to live and work. Vacation is an action that would formalize and institutionalize Westport as a nightlife district, rather than what it is today – a historic neighborhood that has a mix of fun bars, retail, residential, and office uses.

Bar owners have long chafed at the limitations of operating in a neighborhood environment rather than a managed, private entertainment district like KC Live in Kansas City’s Power and Light District. KC Live, of course, restricts entry, charges cover, allows open containers, has instituted dress codes, and generally manages who comes in and out to serve the image and profit of surrounding establishments. But in Westport, bar owners are stifled by a neighborhood that keeps trying to be other things and serve other people.

The proposed vacation makes it easier and more profitable for bars to operate, but as we are already seeing from comments of those who live and work there, it would discourage and create new barriers for those who are in Westport for other reasons. These new barriers are on top of the existing stresses and nuisances that the concentration of bars already creates, despite their real value and critical function in supporting an active, vibrant place.

So who gets to decide what Westport is going to be? Is it really in the City’s interest to pick one group of stakeholders and say, “Westport is yours to profit as you like, forever, and everyone else will have to (literally) get in line?”

It is problematic that a discussion of the long-term consequences of vacation on the character and evolution of Westport is absent from the City’s decision-making thus far. That’s particularly true because Westport appears to be on the cusp of major change. The desirability of the neighborhood is perhaps higher than it has ever been. Occupancy is up, and there is strong developer interest to expand housing, retail, and office options. There is an opportunity for Westport to mature into a more complete neighborhood with a healthier and more sustainable balance of uses that still includes active nightlife, but doesn’t cater to it exclusively.

A Twisted Logic: Addressing Problem Uses by Rewarding Problem Uses

Related to the conversation about the future of Westport is the question of why the City would choose to gift what is today a public asset available to everyone to a group of private interests for their personal profit. Remarkably, the City is considering not only gifting public land to private interests, but doing it as a mechanism to address problems for which those private interests are directly responsible.

Bar owners are right when they point out that the management and safety of large weekend crowds in Westport is a problem, but vacation rewards the source of that problem by institutionalizing it at the expense of every other public use and user of the streets, forever. The City’s memorandum of understanding further incents and enables the source of nuisances that vacation is supposed to address by committing to maintenance and improvements to the streets, even after they become private property. This transaction seems totally backwards. Surely the property owners whose uses are causing nuisances in the neighborhood, (supposedly) generating safety concerns, and increasing costs for the City should be mitigating and compensating the City for the impacts of their uses on the rest of the neighborhood, not the other way around. In this context, how can vacation possibly be in the interest of the Westport neighborhood or the general public?

As members of the Westport Regional Business League explain the rationale for vacation, it continues to appear less and less appropriate as a solution. If crowd problems in Westport are a result of people flocking to Westport after 1 am, and the cost of security for businesses is so great that they are unwilling to pay or can’t remain profitable, then a simple solution becomes excruciatingly clear. Bars in Westport could close at 1 am like other parts of the City. Then there would be no more crowds descending on Westport after bars elsewhere close. There would be no more security costs for businesses associated with managing those late-night crowds that grow beyond the regular patrons of bars in Westport. And there would be no need to give public property to private businesses, with all the sacrifice that entails for the City and its citizens.

Public Spaces Have Value

Even if the City and all the groups invested in the future of Westport could agree that vacation served a valuable public interest, there still has been no discussion of the opportunity cost losing this shared public asset forever. At the most basic level, the more than 100,000 square feet of prime real estate, in the heart of one of Kansas City’s most desirable neighborhoods with unique access to the neighborhood’s most active uses, has a significant monetary value. If we’re going to transfer that valuable public land to private owners, what do Kansas City citizens get for what we are losing? What would compensate for the loss of every other public use and benefit of that property to the City forever? Westport Road and Pennsylvania Avenue serve a critical civic function in connecting people and places in the neighborhood, in supporting investment, in attracting people and providing a free and public space to gather and interact. With vacation, while the City may negotiate limited access at limited times for public use, it no longer has the capacity to determine how these streets function, who can use them, and what role they can play in supporting broader community needs. Is that loss of opportunity and capacity to use streets in the public interest worth the benefits vacation is supposed to provide? Those benefits appear to boil down to some extra screening for guns and a way to reimburse bars for security guards. That seems like a terrible deal for Kansas City.

Past Vacations are Already Hurting Westport

One way to evaluate merits of vacating public streets is to review cumulative impacts of the many vacations that have already occurred in Westport.

Westport’s traffic problems, such as they are, result from years of minor street closures that have focused auto traffic onto two main thoroughfares. Prior to the creation of Southwest Trafficway, the Westport street grid bore all the hallmarks of a former town center that had been swallowed up into a larger city’s street grid. It had small-scale blocks, multiple side streets, informal paths, and met the surrounding street network at an odd angle. At the grid’s edges, various connections allowed residents and neighborhood regulars from surrounding neighborhoods who knew the shortcuts to enter and leave Westport without using Westport Road, Mill Street, or Pennsylvania Avenue. Its permeability enabled it to absorb additional people and traffic without becoming overwhelmed or gridlocked.

After the creation of Southwest Trafficway, the connection to the Volker neighborhood was severed, except for crossing points at 39th, 43rd, Mill, and Westport. Westport Road, already the primary east-west connection, became the sole east-west route through the neighborhood.

As Westport and all of Kansas City became more auto-centric, other street closures followed and a grid of much larger blocks emerged. Today, options for traversing the neighborhood are limited to the current trio of Westport, Mill, and Pennsylvania. The proposed vacation would turn two of those remaining street connections into private property. In its historic form the Westport street grid could have absorbed additional traffic. In its current form the Westport street grid could with some careful development be an inviting pedestrian area. But what we have now is the worst of both worlds: not fully pedestrian, and not well-suited to handle automobile traffic. By vacating Westport Road and Pennsylvania avenue, the City will lose its ability to adapt, improve, and reimagine these streets to serve Westport as it evolves.

The Dangers of Privately Owned Public Space

Beyond the economic value of Westport streets and the connectivity they provide, there is another important role they play – a role that is fundamental to a functioning neighborhood, city, and democracy. Truly public spaces like our streets and parks are the venues where we all gather, not to shop or consume, but to engage with each other, to interact with our friends and neighbors, and to exercise our rights and duties as citizens to participate in civic discourse. Private property cannot truly serve this function, even when it is open to the public, but especially when it is positioned to serve commercial interests first and foremost. Part of the problem with privately owned public spaces is that many of the constitutional rights and protections that apply in public spaces simply don’t exist on private property. In the case of the proposed vacation of Westport streets, those protections would simply go away.

As Bradley Garrett writes in the Guardian:

“The geographer David Harvey once wrote that “the freedom to make and remake our cities and ourselves is … one of the most precious yet most neglected of our human rights”. Generations of urban theorists, from Lewis Mumford to Jane Jacobs to Doreen Massey, have suggested that the place where cities get “remade” is in the public rather than private sphere. Part of the problem, then, with privately owned public spaces (“Pops”) – open-air squares, gardens and parks that look public but are not – is that the rights of the citizens using them are severely hemmed in. Although this issue might be academic while we’re eating our lunch on a private park bench, the consequences of multiplying and expanding Pops affects everything from our personal psyche to our ability to protest.”

This concern about our rights and activities in privately owned public spaces has transitioned from academic to visceral in several high-profile events over the past several years. The Occupy Wall Street protests in New York that occurred in Zucotti Park were technically taking place on private property. In The Occupy Movement: The Public-Private “Tug” of Land, Anjali Rajasekhar writes that:

“The hybrid public-private nature of POPS makes the application of the First Amendment difficult since the free speech protection is meant as a limit on government action. Presently, there are no rules that specify what private owners of POPS are prevented from doing.”

At a privately-owned, commercial, but still-open-to-the-public space – the Mall of America – the right to assemble and protest was similarly curtailed in 2015 when Black Lives Matter protesters planned to gather. The Mall of America put it very simply:

“We respect the rights of free speech and peaceful assembly. However, the courts have affirmed our right as private property owners to prohibit demonstrations on our property.”

In a 2010 study, The Privatization of Public Space: Modeling and Measuring Publicness, Jeremy Nemeth and Stephen Schmidt point out that the real and measurable constraints of privately-owned public space expand beyond free speech.

“Privately owned public spaces are frequently criticized for diminishing the publicness of public space by restricting social interaction, constraining individual liberties, and excluding undesirable population.” “We find that the use of the private sector to provide publicly accessible space leads to increased control over use, behavior, and access. Furthermore, while both publicly and privately owned public spaces tend equally to encourage public use and access, managers of privately owned spaces tend to employ more features that control behavior within those spaces.”

Closer to home, we have witnessed precisely this clash of public rights and private interests in the entertainment district at KC Live. In 2009, the district faced protests and lawsuits for application of a dress code that many argued was discriminatory.

From NPR’s reporting at the time:

“We had two specific goals in mind — public safety and decorum,” Smith says. “It has absolutely nothing to do with race.” Brian Bass is a contributing editor to Nightclub & Bar Magazine. He says dress codes are standard at nightclubs — they help bouncers keep troublemakers out. “[Because] without a dress code, then it certainly becomes a lot more sticky,” Bass says. “You know when people are dressing up, there’s some thought there that people will behave better than they do on a normal day as well.”

Restricting what people wear and how they express themselves is unconstitutional in public spaces, but KC Live is private property. If Westport business owners successfully vacate Westport Streets, they would be able to create the “Westport Live” environment they have espoused, and gain the ability to restrict, manage, and curate who enters the neighborhood and how people behave while they are there.

Will Vacating Public Streets Make Westport Safer?

As we explore the sacrifices and tradeoffs that vacation entails, it is worth returning to why business owners say they want to do this in the first place: safety. The question we must ask is whether we have any evidence that vacating public streets will actually make us safer? Data about violence in Westport and its impacts on local business is conspicuously absent from conversations about this permanent and irrevocable gift of land from the City to business owners. Instead, proponents have elected in community meetings to persuade with anecdotes about 9/11 and warnings about “thugs” in the neighborhood. If guns are really the driving factor for this process, then the proposed safety firewall leaves a lot to be desired. Weekend screenings won’t stop those who enter earlier in the evening from bringing guns into the district. They won’t stop those who live and work in Westport from bringing guns into the district either. But they do provide a group of business owners the opportunity to profit from the entire neighborhood’s pedestrian traffic. As discussion of the need for vacation steers toward who belongs and doesn’t belong in Westport, the constitutional protections we would sacrifice in the name of public safety begin to look increasingly important.

Vacation is Forever

The concerns identified in this post can be debated. The ideas can be explored. But we should not forget that if we vacate Westport Road and Pennsylvania Avenue, this will be the last time we have the opportunity to ask these questions. Once these streets are vacated, it is extremely unlikely that they will ever be truly public again. Vacation of public property is a “forever” decision. Before we make it, it is critical that we consider the consequences.