Photography Banned in Downtown Silver Spring, Maryland

[Uhooru]

Thomas, he's saying it was a street, is no longer, its a pedestrian mall.

 

Here's the analysis linked to the story..

 

"In 1998, the county agreed to ?abandon? this portion of Ellsworth, meaning it would no longer be traditionally used as a county road. The abandonment was subject to county council resolution 13-1429, which stated as a condition for the abandonment: ?The granting of an easement for public access on Ellsworth Drive pursuant to the General Development Agreement.?

 

The General Development Agreement states the following in Section 14:

 

?The County agrees to seek County Council approval of the abandonment of Interior Ellsworth Drive. Upon execution of Ground Leases for both Sections B and C of the Project, the County shall enter into an unsubordinated Ground Lease for a ninety-nine year term with Developer or an association formed by Developer for Interior Ellsworth Drive. The Ground Lease for Interior Ellsworth Drive shall be terminated upon a termination due to default under the Ground Lease for either Section B or C and shall not be subordinated to Developer?s Construction Financing or Permanent Financing. Devevloper shall not have an option to purchase Interior Ellsworth Drive. The Ground Lease shall be triple net at nominal rent of One Dollar ($1.00) per year and other than the cost of the initial design, development and construction thereof pursuant to a Public Improvement Contract, the Developer shall assume all cost, liability, maintenance (ordinary and capital), security, and other responsibilities incidental to ownership of and associated with Interior Ellsworth Drive. The Ground Lease shall provide that Interior Ellsworth Drive shall be used for vehicular and pedestrian traffic with an easement across it for public access to the Silver Circle Garage and access from Georgia Avenue to Fenton Street and that Interior Ellsworth Drive shall be closed up to four (4) times per year (on dates and at times to be reasonably agreed to by the Developer) to allow the County to conduct public festivals coordinated through the Silver Spring Urban District Corporation (or the County if the Silver Spring Urban District Corporation is not formed). No changes to the alignment or construction of Interior Ellsworth Drive may be made without the county?s consent. No more than a to be agreed upon number of parking spaces may be created on Interior Ellsworth Drive.?

 

So the GDA makes the developer responsible for security, but ensures ?an easement across it for public access.? The GDA also refers to a separate Declaration of Easements in Section 13. Item 6 in that declaration states:

 

?6. Public Use Easements

Declarant [county] hereby establishes and grants for the use and benefit of the general public, those certain easements and rights (collectively the ?Public Use Easements?) more particularly described below. Pursuant to the plans for the Downtown Silver Spring Project as approved by the applicable governmental authorities, the Public Use Easements have been designated and shall be deemed for all purposes of this Declaration to constitute Public Use Space as such term is defined in Section 59-A-2.1 of the Zoning Ordinance of Montgomery County, as the same may be amended from time to time. The Public Use Easements are described and depicted on Exhibit H attached to and made a part of this Declaration and shall consist of the following?

 

(iii) a perpetual non-exclusive easement and right of passage and use, free of charge, for vehicular and pedestrian ingress and egress on, over and across Ellsworth Drive??

 

Section 59-A-2.1 of the county?s zoning ordinance defines public use space as: ?Space required by the sector plan and other space devoted to such uses as space for public enjoyment consisting of such things as, but not limited to, green areas, gardens, malls, plazas, walks, pathways, promenades, arcades, lawns, fountains, decorative plantings, passive or active recreational areas. Such space may also consist of space and/or amenities recommended by an approved urban renewal plan. Such space shall not include parking or maneuvering areas for vehicles. Area devoted to this purpose shall be easily and readily accessible to the public without restrictions to particular segments of the public. In areas where pedestrian walkways are shown on an approved and adopted master plan or sector plan, such area within the percentage required for public space as is necessary shall be devoted to the provision of pedestrian walkways or paths for general public use.?

 

However, Exhibit G of the Ground Lease states: ?Subject to the terms of the Declaration [of Easements] and the terms of this Lease, Tenant [developer] shall have the sole and exclusive right to manage and program the uses of the Project and to impose and enforce such reasonable rules and regulations as Tenant deems necessary to maintain order and to promote the safety, security and economic success of the Downtown Silver Spring Project.?

 

So both the General Development Agreement and the Declaration of Easements provide protections for the public, defined as public ?access? in the GDA and ?right of passage and use? in the Declaration. The Declaration even goes so far as to designate the area as ?Public Use Space.? However, these rights are not absolute as Peterson has broad management authority so long as its rules are ?reasonable.?"

 

So, its clear..right????

 

[john_elder1]

Yeah, its clear.

[michael s.]

<< ... The Ground Lease shall be triple net at nominal rent of One Dollar ($1.00) per year ... >> <p>

 

Why is it we always hear about the best real estate deals <i>after</i> they close ?<p>

 

:-)

[Brad_]

>>> Brad is absolutely correct, This is not the City of Silver Spring we are talking about.

...

This is not even a "street" we are talking about. ... Just as Brad said, basically an outdoor

mall made to look like a quaint village/town thing that just happens to have Starbucks,

Coldstone Creamery, Buckets'o'Noodles, and whatever else they have in those things.

 

Thanks Randy. Enclosed malls are dead. There are a handful of developments like these

in the SF Bay Area. Santana Row in San Jose and Bay Street in Emeryville. Although they

look like "downtown" areas, they're really malls in disguise with varied architecture to look

like development occurred over decades. Usually include branded store chains, dining,

housing, and a hotel. They're private property even though they're open to the public. No

photography. Typical stores; Apple, Pottery Barn, Gap, Borders, Tommy Bahama, Crate

and Barrel, Sun Glass Hut, etc. Ooooh, yeah baby, I'm getting the shakes just thinking

about the great potential of shooting in these areas. Can't wait to shoot some people

walking by the GAP...

 

Not sure why anyone would want to photograph there - pretty boring with zero character

and pull. But, some will want to turn this into a major federal "civil rights" issue. Easier

making noise and complaining rather than than shooting out on the real street - or

actually *doing* something about it... I can think of far more important causes to get

behind rather than mall snaps...

[robert_m_johnson]

I just watched the end of "What killed the electric car?" At one point GM was sending the last group of perfectly operational electric cars off to be crushed. A group of long time protesters showed up ready to be beaten or arrested. A scene shows police reading their billy clubs in unison, and all of them were arrested for their cause. I for one am not willing to be arrested to make some lame point. AND I could and would take pics there without anyone being the wiser. Remember the pics that Boogie was just showing? A bit different then a showdown at the mall...

[Brad_]

>>> AND I could and would take pics there without anyone being the wiser.

<P>

Bingo. Those that need to get pix, assuming there's something interesting to get, will get

them... Without all the drama of turning it into a major civil rights injustice of being held

down by the man. In this case, the security guard lackey asking you to not take pictures.

There's something very hilarious about the imagery this conjures up. <P>

 

What do we want? <B>To shoot the Malls!!!</b> When do we want it? <B>Now!</b>

(repeat...)

[michael s.]

But Brad, there are days my photos are flat enough that part of me longs for a civil rights imbroglio -- something, anything to help me snap out of it. :) <p>

 

On a serious note, if this were a public street -- and I'm more than half-convinced it isn't -- the issue wouldn't be whether there were any good photos to be taken there.<p>

 

Calling the ACLU is far from a hollow suggestion. ACLU's interest (or lack of interest) in a particular situation might turn on a number of factors beginning with the merits, and moving on to other things: local ACLU policies and priorities, the possible precedential value, public interest and notoriety, the particular jurisdiction in which the case would be filed, and other issues as well. <p>

 

Three examples: <p>

 

1. <a href=http://www.boston.com/news/local/massachusetts/articles/2006/06/13/aclu_threatens_to_sue_over_limits_to_photographing_the_t/>"Boston Globe" article reporting on ACLU of Massachusetts' threat to sue MBTA </a> over an apparently-unwritten policy limiting or forbidding photography on the "T"<p>

 

2. <a href=http://www.nyclu.org/mta_photo_ban_pr_031606.html>Threat of lawsuit from NYCLU (New York Civil Liberties Union) puts an apparent end to an MTA practice of threatening arrest of persons taking photos</a> in MTA rail and subway stations.<p>

 

3. Finally, today (June 28. 2007), <a href=http://www.nyclu.org/nyc_photo_permits_pr_062807.html>NYCLU filed formal comments objecting to portions of New York City's proposed guidelines requiring photography permits</a> under certain circumstances. The newly proposed guidelines were drafted after NYCLU filed suit against the City challenging earlier restrictions.

[robert_m_johnson]

reading = readying

 

"What do we want? To shoot the Malls!!! When do we want it? Now! (repeat...)" :-)

[michael s.]

I embarrass my kids with the following "rap":<p>

 

<i>I'm feelin' tall<p>

 

Goin' to the mall<p>

 

Unh !</i><p>

 

Copyright Michael S. 2002

[robert_m_johnson]

<a href="http://www.flickr.com/photos/robert_m_johnson/489974754/" title="Photo Sharing"><img src="http://farm1.static.flickr.com/198/489974754_09ec91aa7c_o.jpg" width="600" height="399" alt="Store Cop" /></a>

[robert_m_johnson]

Back when u could still buy a bong at the "Store 24!" :-)

[Brad_]

>>> On a serious note, if this were a public street -- and I'm more than half-convinced it

isn't -- the issue wouldn't be whether there were any good photos to be taken there.

 

Totally agree. I'm always for more rights (when it comes to public property). But in this

particular case, I just shrug at the practical consequences and say so what - little to snag -

I'm not being hindered in my pursuit of life, liberty, happiness, apple pie and Chevrolet.

[robert_m_johnson]

<a href="http://www.flickr.com/photos/robert_m_johnson/504577855/" title="Photo Sharing"><img src="http://farm1.static.flickr.com/214/504577855_a60428b58f_o.jpg" width="600" height="400" alt="Boy With Arcade Rifle - Roller Rink" /></a>

[thomas_sullivan]

the only reason I brought up the "lease" is because, as far as I know, you have to own something to lease it. Without all the other crap to cloud the issue, the county owns the property if they are leasing it. The county being a group of government officials that represent the people, therefore are the people and therefore the public. Therefore it is public property......ie a street in this case. All the rest of it is just a smoke screen to make you feel like you are the one doing something wrong. My opinion only....I am not a lawyer, and quite frankly if I had to deal with all those extra words getting in the way of the real issue every day, I'd quit the profession anyhow.

 

It's not that I want to take pics at a mall......it's the principal. And like Robert said, if I really did want pics of that street, I'd get them and no one would be the wiser. But, the problem is, if I get caught, then I am the criminal.........when, more than likely, in my opinion....with what I know from searching the web on this issue.......I am not at fault if I openly take pics there. Thats why it's important to fight this stuff....it keeps you on the right side of the law. Once you set an example like this that it's OK somehow, they always want the next step....the whole neighborhood, the whole town, the whole county, the whole state........the whole nation. I say fight it when it is a small issue, once it gets that big, you haven't a prayer of changing it. And, by the way, fighting it is not always the act of sueing, or the like..........just keeping the issue in the public discussion is enough sometimes to cause change. THAT is why freedom of speech in every form, is an absolute necessity in a free nation.

[john_elder1]

But other photographers are being hindered; thats the point. It doesn't matter a whit that Brad doesn't find the subject matter interesting. He has missed the point. By the way the text quoted by Barry Fisher at 8:25 makes the case stronger for the photographer. The tenant's right to manage is LIMITED to REASONABLE rules NECESSARY to maitain order,to promote safety, security, and economic success. Prohibiting photography is not reasonably necesary to promote this limited management. Its important to protect all photographers rights even though some people might not like the subject they shoot. Kind of like free speech. I might not like what you are saying, but people have died and are dying for our freedom of expession regardless of the content of that expression. The attitude that if someone elses rights are violated, but it doesn't effect me so it doesn't matter, is shameful. I wouldn't want to be in a foxhole with some of you guys.

[Brad_]

>>> The attitude that if someone elses rights are violated, but it doesn't effect me so it doesn't

matter, is shameful.

 

Jeez, get off your soapbox and quit grandstanding. No one is saying that. It's private property - a

mall.

 

>>> I wouldn't want to be in a foxhole with some of you guys.

 

I suspect most here would find that thought comforting...

 

So, are you going to take this case and move it forward. You seem to have a lot of emotional

energy invested in it. And as *you* said, *someone* should do something about it. How about

you?

[michael s.]

John, you probably know from a number of my prior posts on this subject that I'm virtually always on the side of more rights, and correspondingly against restrictions.

 

But I read that provision as a far broader grant of authority to the Tenant than your post would suggest. It says:

 

" ... Tenant [developer] shall have the sole and exclusive right to manage and program the uses of the Project and to impose and enforce such reasonable rules and regulations as Tenant deems necessary to maintain order and to promote the safety, security and economic success of the Downtown Silver Spring Project."

 

This is just a first-blush response on my part, but the more this begins to look like a private, open-air mall on leased ground -- with the public granted access -- the more I think maybe we gotta dig our foxhole on some other block in Silver Spring ?

 

But I could be wrong. And proliferation of this sort of "lease" with concomitant forfeiture of what would otherwise be protected rights and protected expression (no campaign literature, etc. as noted above in Eric Fisher's column) would raise my antenna. It would move us more in the direction of the kind of "company town" restrictions you referred to above.

[michael s.]

Sorry. <i>Marc Fisher's</i> column (not Eric).

[Brad_]

The trouble is, John, is that you try and bolster your case via exaggeration. You said the

photographer was "threatened" by a security guard for taking photographs. In fact he was

told that photographs were not allowed.

 

I made the case it's not Silver Springs, but a unenclosed mall on private property. Where

you rant with: "There is a huge difference between a mall and Silver Springs , Maryland,

Either get a law degree or learn how to use the one you have ."

 

And then Randy who lives there confirms it is indeed an unenclosed mall with branded-

stores. So much for your law degree you wave around providing any benefit. And then

you go on about being arrested. Why is that relevant to this story?

 

And now your lecture on the benefits of rights - like people here don't understand the

concept.

 

There are two other attorneys contributing here. Their well-reasoned and thoughtful

approach to analyzing the situation carries much more weight than your shooting from the

hip exaggerations and grandstanding used to further your position. Something to

consider...

[Brad_]

Also, it is important to note that the photographer was engaged by a security guard on the

street. Same has happened to me in the Santana Row and Bay Street projects I mentioned

above. Same policy.

 

One should note that these are security guards and not the police - giving further weight that

the "street" is indeed private property. Wouldn't surprise me if at the entry to the street

there are plaques granting access permission, to prevent a prescriptive easement from being

created.

[john_elder1]

Micheal S: I'm tired and going to bed. In addition to all the other "stuff" there is certainly enough involement by Montgomery County to establish "state action" and there sure seems to be a "policy" of no photography. Sound like a viable civil rights action to me. Possibly a 1983 civil rights action. I do dissagree with you on the grant of authority. I believe that grant of authority will be narrowly construed when balanced against curtailment of Constitutional Rights. Thanks for your intellegent input.

[john_elder1]

Brad, Your problem is that you simply don't care. So why are you still posting?

[johnnycake_.1]

I think 'this' is belongs here:

 

I've been investigating. Yesterday, I left a message with the office of the attorneys

representing Montgomery County, MD. I asked them 1) to clarify state law regarding

photography of persons, buildings, etc. in public places in, specifically, Montgomery

County and in Maryland and 2) to explain what was going on in Silver Spring regarding The

Peterson Co. and photography in public places.

 

Yesterday, at the end of the day, one of the Montgomery County, MD attorneys returned

my call. He had, in turn, spoken with Peterson Co. counsel.

 

First of all, he said that Montgomery County has no explicit law restricting the

photography of persons, places, buildings, etc. in public space. He was less certain about

state law.

 

We then talked about Silver Spring, the Peterson Co. and the important issues. He told me

that the Peterson Co. has decided to sponsor a photography contest in Silver Spring. The

Peterson Co. wants people to shop, and buy, and they don't want to jeopardize their

investment. On the other hand, he did maintain that the Mongomery County lease with the

Peterson Co. did make the property private, and that included the roads and sidewalk, and

that the Peterson Co. can control ingress/egress at their discretion. I, in turn, pointed out

that the County cannot 'lease' anyone's civil rights. A citizen on a public thoroughfare,

road or sidewalk, does not relinguish their civil rights even if the adjoining property is

leased to a private company. We amiably disagreed.

 

The Peterson Co. is trying to 'defuse' the situation by sponsoring a photo contest leaving

the more difficult issue unaddressed. Leasing of public thoroughfares by private business

should not include a suspension of the 'Bill of Rights.'

 

Johnny

[Brad_]

>>> Brad, Your problem is that you simply don't care.

 

I do care. The "problem" is I don't take a casual attitude towards accuracy in characterizing a

situation. And feel no need to rely on exaggeration to make a point. And I respect private

property.

 

You, on the other hand, take more of a "Don't let the facts weigh you down" view towards

things.

[Brad_]

>>> ... did make the property private, and that included the roads and sidewalk, and

that the Peterson Co. can control ingress/egress at their discretion.

 

That's the nice thing about private property. You can control what occurs on *your*

property.

 

You may live in a home or condo and occasionally let people in through your door to visit.

Makes no difference whether you own or lease your home, if you choose to restrict others

from taking pictures, you have the right to so.

 

>>> ... the Mongomery County lease with the Peterson Co. did make the property

private, and that included the roads and sidewalk, and that the Peterson Co. can control

ingress/egress at their discretion.

 

>>> A citizen on a public thoroughfare, road or sidewalk, does not relinguish their civil

rights even if the adjoining property is leased to a private company.

 

It's not a public road. That's why it is patrolled by security guards rather than by sworn

police. By granting permission for ingress/egress at their discretion, they maintain their

private property rights - preventing a prescriptive easement from being created. These

private property rights include being able to control what happens on THEIR property.