Who Owns New Haven's Green?
If you are not from New England, odds are you don’t understand the significance of a town green. It is a city’s center, a haven, if you will, from the particular cares and concerns dividing a community. The town green is where the people can and do meet. New England towns typically have greens. They are part of the folklore of the region, a place where town meetings and congregational churches place a premium on civil cooperation and participation.
That’s the vanilla, Norman Rockwell vision of the world.
In New Haven, things are just a touch different. You see, the town green is private property. It is owned by folks claiming descent from the colonists who first set up a plantation there in the 1630s. That was when Charles I ruled England, and before he was beheaded by Parliament.
New Haven’s town green is 16 acres in area. It was a space just large enough to hold the 144,000 folks the town’s fathers thought might be spared destruction when Jesus returned to earth. The green has served as town cemetery – an estimated 5,000 to 10,000 souls still slumber beneath its lawns, a market, parade ground for the town militia, at various times it has housed the state capitol, and it remains the site of several historic churches. Today’s green bustles on a spring afternoon with lunchtime amblers, is the home to summer concerts, and is an island of peace in the middle of a small but bustling city.
For the past five months it has also been home to a tent city constructed by protestors. Tomorrow, the City of New Haven intends to evict the protestors, and to tear down the tents and lean-tos. Why? (Our office is fighting to keep the protestors on the green in order to serve as a visible reminder that for many Americans the rhetoric of the American Dream does not match the reality of American life.)
Has pressure been brought to bear upon the city by the private five-member board that oversees the green? This board is neither elected nor subject to any public oversight. When one member of the board dies or otherwise loses interest, the remaining board members appoint another member for life. Membership on this committee is a blue-chip only sort of thing: The current group consists of the former Solicitor General of the United States and professor of law at the Yale Law School, a sitting federal judge, a retired banker, the president of the Albertus Magnus College, and a descendant of one of New Haven’s original settlers. Call it the one percent of the one percent.
This group takes a counter-intuitive view of the green. "[T]he Green is not and never has been a public square of the City," insists Drew Days, III, the chairman of the group known formally as the Committee of the Proprietors of Common and Undivided Lands in New Haven. He notes that the Connecticut General Assembly long ago dispensed with such things as public notice of the committee’s meetings. The committee operates as a sort of geriatric Skull and Bones Society, a secret society open to membership only upon invitation of those deemed acceptable to current members.
I am guessing that if the next 1,000 people to pass through the green were asked whether they were walking on public or private land they would without hesitation regard the land as public. It’s the town green, after all.
The committee holds legal title to the land, and exercises control over it, holding it in "trust" for the people of New Haven, according to Professor Days. In a statement released today to the New Haven Independent, Professor Days contends the General Assembly has recognized the Proprietors claim to title over the green in a series legislative acts and omissions reaching back to pre-Revolutionary War times. Of course, neither the courts nor the General Assembly have ever squarely addressed the following question: Why is land used and commonly regarded as public held by an hereditary elite? Sure, the Proprietors took possession of the land in the 1630s. Yes, they governed the town for decades. But little things have intervened to change the shape of the social world, things like the American Revolution, and the Connecticut Constitution of 1818.
My office filed suit today asking, among other things, that the Connecticut Supreme Court determine whether a hereditary interest in what amounts to public space violate the Connecticut Constitution’s ban on hereditary titles and offices in this state. The relevant provision reads as follows and is found at Article First, Section 18: "No hereditary emoluments, privileges or honors, shall ever be granted, or conferred in this state." I suppose the Proprietors regard their offices as essentially private, and therefore not conferred by the state. While that may be true, it begs the larger question about who owns the town green. Does it belong to the City of New Haven and its people? Or is it no more than a private theme park, a quaint theater in which we play at being a community of equals, all the while hoping the secret elite owning the stage does not turn off the lights before the final act? At what point does something like adverse possession apply? Hold the land open to the public to use without resitriction and hide your title to the land for one, two, three, no make that now almost four centuries, and the public might just acquire title to the land.
Funny, isn’t it, how when the state or a municipality wants to take property from a little guy and turn it to public use, the doctrine of eminent domain is relied upon to take property. But when old money owns the public space, it goes underground, conducts its business in secret, seeks Legislative privilege and then asks us to thank it for being able to use their private property.
I never paid attention until recently to who owned New Haven’s green. I assumed it was public space. There are no fences, no signs betraying private ownership. It is served by municipal employees. I was stunned to learn it is a colonial vestige, and that it is governed by folks elected in secret and holding office for life. No wonder the City wants the Occupiers off the green. The 99 percent own less and less in this country. We don’t even own New Haven’s green.
What would be the harm in giving this land to the City of New Haven? None. But asking a rich man to part with wealth is like trying to walk a camel through the eye of a needle. Hence, the enduring significance of Occupy New Haven.