(Unedited) Podcast Transcript 578: Sidewalk Nation

This week we’re joined by Cardozo Law professor Michael Pollack to talk about his new book Sidewalk Nation: The Life and Law of America’s Most Overlooked Resource. Michael discusses who manages, owns, and feels ownership of sidewalks and advocates for a Department dedicated to them. We also talk about the nexus between sidewalks and roads, the impact of the Americans with Disabilities Act, and Denver’s successful funding and maintenance referendum.

Listen to this episode at Streetsblog USA

Find more episodes of the show in our hosting archive.

The episodes are numbered but most are fairly evergreen!

Below is a full unedited AI generated transcript of the episode:

And given my prior set of interests in, as I was saying, sort of the regulation of space, how governments make decisions about land and space, it was a natural fit. And then, of course, as the pandemic receded and our lives returned to a different kind of normal, I still paid attention to what I was seeing on the sidewalks, and it turned out that though COVID was a sort of special case of heightened use, the basic thread of it all persisted long afterward and was probably there all along, and I just wasn’t noticing it.

And so part of my work is to get more people to notice it.

Uh, it was one of my favorite classes in law school, and it’s a really important- Overlay onto the regulation of public space. So we tend to, we academics, a lot of policymakers as well, tend to think about how we deal with public space as being primarily a question of property law or zoning law, and bringing in these concepts from policing, criminal procedural law, as well as I write in the book about First Amendment law and speech and protest and art.

Bringing those to bear on the conversation, I think, is really an important piece of the puzzle and something that I hadn’t myself thought all that much about before getting into the work of this book.

And so the book takes us, takes myself, takes readers out of my home area of New York City, although I do talk about New York City at some length in the book, uh, but as well into states like Texas, Louisiana, Colorado, and others, bigger cities and smaller towns there, to try to get a handle on what is sidewalk life like, what is sidewalk law like in these other places.

And so broadening my lens geographically and sort of in, in terms of observation, and then broadening the legal lens as well, and so thinking about things like policing, surveillance, speech and protest, expanded discussion of new technology, climate change, all these other forces that, you know, more and more came to bear on the conversation the more I was researching and talking to folks.

In terms of whether there’s anything that didn’t quite make it in, um, there are other places I’d still love to talk about and more people I’d still love to talk to, but I do feel like I’ve captured here the range of forces that are at play on the sidewalk and at least have begun the conversation of what we ought to do to manage them better.

There are sidewalks preserved in the ruins of Pompeii. In terms of what they look like as a architectural feature, they look pretty much like our sidewalks do today. Uh, a little narrower, but they look like they do today. Some of the earlier sidewalks in the United States were made out of wood, in Boston, in New Orleans when New Orleans was a French colony.

The sidewalks that we have today, the sort of concrete sidewalks with a sloped curb, you know, that’s a, a relatively more modern invention, but the, the concept of having a space that is separated from where, then it was horses were traveling, um, a space separated from the road that wasn’t just the gutter where people could walk and transit from place to place, that’s not a remotely new concept.

What is interesting to me about how sidewalks got started in the United States is they had been, in many cities, the responsibility of an individual, you know, saloon owner or innkeeper to construct right in front of their property. And so earlier sidewalks were often viewed as an amenity of a particular building rather than of a community.

So there would be a sidewalk in front of a building or in front of a set of buildings where you could, you know, I don’t know what the right word is, park your horse, uh, in fr- in front of that building. Um- There’s still hitching

So in many municipalities, the sidewalk is no different than the street in that it is owned by the government, right? So that is, it is land owned by the municipality, and the private property owner’s property line has ended somewhere before that sidewalk. So in those cases, it really is public space. It is publicly owned space.

In other municipalities, it is true that the private owner’s property line might extend past the sidewalk, either to the curb or even in some cases into the street to some degree. So in those cases, it is the case that the sidewalk is on private property, and so it’s easy to maybe think, “Oh, well, sure, in that case, the property owner should have responsibility over it.”

Uh, but that’s not quite right either, because even when the sidewalk is on private land, the public has what’s called an easement to use, cross, access that space. That’s why we all have the right to walk on the sidewalk, is because the public has an easement to be there. But as a matter of basic property law, when one person has an easement over somebody else’s land, it is the responsibility of the person with the easement to take care of and maintain that space.

And so in this context, it would be the public. It would be the, the public’s responsibility to take care of the sidewalk, not the property owner. So whether the land is actually private land with a public easement or actually public land, either way, the responsibility as a matter of basic property law would be the public’s, i.e.

the government’s. And yet, as you were saying, Jeff, many municipalities allocate this responsibility to the adjacent property owner And I think there’s a lot that’s wrong with that, and we can get into a lot of it. You mentioned the, the feelings of sort of ownership or territoriality that the owners might have, and I think that’s a real concern where folks start to behave like this belongs to them.

And in some sense you can’t quite blame them because the government is telling them they have to take care of it. The government is treating it like it does belong to these private individuals, and so it’s not surprising that those same individuals start to behave like they own it. But that can be really counterproductive and ultimately antisocial.

Like I said, a lot of other problems with this arrangement. I’m happy to, to- Yeah … talk at length about them.

Yeah. And so this kind of like, uh, I don’t know what the… Like, slow slope towards public ownership, uh, and, like, where the end of the sidewalk is or the end of the regulations are or the end of the road is, the demarcation of that is really fascinating. Like, where the, you know, government has control completely, uh, like which is, you know, the roads and the, the right of ways.

But the sidewalk is a right of way on its own, and so I find that really fascinating because there’s always, like, a, a little bit of lack of clear-cut ownership like you talk about in the book about the sidewalk, but the road is so clear- Yeah … most of the time. And so, like, how do you demarcate where that ends and begins?

You know, when I was working on the book I was thinking, “Well, should I also talk about the curbside?” So parking or curbside dining sheds and things like that. And I thought, well, because- In your term, it has this sort of sliding slope. I have to draw the line somewhere, and so I decided I’m drawing the line at the curb.

Um, but to your earlier question about is there anything that, you know, didn’t quite make it into the book, it’s the curbside, right? So it’s all of those debates about what many would call sort of free storage of cars or the debates about curbside dining. I write a lot about sidewalk dining, raises a lot of the same questions, but it comes up at the curbside as well.

Liminal spaces in general, as a matter again of property law and just of, of life, are, at least for me, where some of the most interesting questions of policy arise. And your point earlier about how the street is so plainly public, you know, I think that also plays out in how we regulate that space and who takes care of that space.

There’s really no question about that, and it’s where we have the overlap or the blurring where more of these difficult questions end up emerging.

Right. Which is like another fascinating thing. But the right of way itself is an interesting space just because, like, all of the functions that it has. The– And I’ve said this many times on the show, but, you know, we put electricity on the street, you know, all the poles and everything else. We put all of our telecommunications on the street.

We put our sewage wastewater management stuff on the street. Um, we’re walking on the street. We’re delivering goods on the street. We’re selling things on the street and on the sidewalk. And so that space is, like, such a part of the connection of people to place, and it’s just a fascinating overarching connector of these things.

Every now and then we’ll close a street and have a parade or have a block party, but for the most part, we all know what streets are for, and municipal government, state government, federal government, that’s a matter of transportation. That is a clear department of transportation area. Sidewalks and curbsides for that matter, raise a whole bunch of other questions because as you were saying, we do all the, all the other things on them.

We walk from place to place, absolutely, so there’s a transportation element there as well. But businesses sell things on the sidewalk, individual vendors sell things on the sidewalk. Uh, restaurants have cafe tables on the sidewalk. We now have an increasing use of technology to engage in commerce on the sidewalk.

So I write a lot about sidewalk robots, these autonomous delivery robots, scooter rentals, bike share for that matter is often placed on the sidewalk too. So there’s a lot of commercial uses. There’s a lot of social uses, people just gathering, talking to their friends, talking to their neighbors, and sometimes having a small party or a small gathering there.

And then as I was saying before, there’s all of these First Amendment kind of uses, these speech and protest kind of uses. There’s policing uses, and as you were saying, there’s all these infrastructure uses as well. And so, so many things are competing for a very small bit of space. And one of the real policy problems is that no one of them is inherently any, quote unquote, better than any of the others, or at least no one’s gonna be able to agree in a sort of large and diverse municipality, this is the ideal use and these are the lesser ones.

And so the goal has to be how do we manage the inevitable collision between all of these uses? What is often referred to in economics literature or policy literature as the tragedy of the commons, right? So there’s space that’s available to everybody, and that is one of its greatest features is that it’s available to everybody.

But that’s also one of its greatest curses, that it is at risk of being overused, inconsistently used, and that can actually degrade the quality of that resource for everybody. And so we need some way to manage that collision, to manage those uses to protect the resource without draining it of everything that makes it vibrant and exciting and powerful for communities.

So, I’m curious, like, what the different discussions are based on, like, the usage of these spaces for actually transportation and walking.

That is, they all face the same kinds of challenges, whether it’s finding financing to construct sidewalks, to expand the network, whether it’s finding the money to improve or maintain the existing sidewalks, and even regulating different uses of the space. You’re absolutely right. Outside of downtowns there’s a lot less commercial use, there’s a lot less sort of, of the collisions.

But there is and remains pedestrian use, travel use, and it turns out that there’s a lot of equity issues folded into that as well. In communities that tend to be poorer communities or communities of color or both, folks are statistically more reliant on public transportation to get to work, to get to friends and neighbors, to run errands.

And so the more reliant one is on public transportation, well, you need to be able to get to that bus stop or get to that tram or subway stop, and the farther out of the center of the city you are, the farther apart those stops tend to be. And so you’re very reliant on the sidewalk to get from place to place.

But this system of private responsibility that we have ends up ironically meaning that oftentimes the sidewalks are in worse shape precisely in the communities where they are most needed and most heavily used. Whereas in wealthier towns, wealthier communities, they might have very well-maintained sidewalks that, Jeff, as you were saying- nobody’s really using.

And so to me, that raises a question of are we spending money in the right places? And though I am, of course, an advocate for walkability and for sidewalks, I wouldn’t write a book about it if I wasn’t. I don’t believe that every single block of America should have a sidewalk on it. I think that rather we need to think carefully about where are they gonna do the most good, and where are they gonna be the most in demand, and invest money in placing them there.

And maybe in the long run, more people discover, “Hey, that’s a nice thing. I’d like to have that in my community, too.” And I would love to see that, but I’m not a supporter of let’s just willy-nilly install sidewalks everywhere or impose uniform obligations everywhere. We should be driven by data. We should be driven by what are the needs in a given community, what is the usage like in that given community, and respond accordingly.

We call these parking minimums, where for every X number of apartments in a given building, for every Y number of restaurant seating or bowling lanes, one of my favorite examples. For every bowling lane, the law says you need a certain number of parking spots, and the consequence is that a lot of land is taken up by asphalt for parking cars.

Now this is a problem for a lot of reasons. It’s land that is now not being used for housing more people or generating more commerce, and those are other productive uses it could be put to. But it also creates this problem for walkability. You see this all the time, particularly in Houston, where the sidewalk quality is actually quite good throughout a lot of the city.

There are areas where the sidewalk quality is poor. That’s true in every city. But no one’s really walking, and one of the reasons why is, yes, car culture and all the rest, but there’s nothing really to walk to. The experience for the pedestrian is pretty uninviting because between the sidewalk and whatever you wanna go to- A friend’s apartment building, a business, it’s a giant parking lot.

And so better would be to have the business right up against the sidewalk and the parking someplace else. Just simply inverting where the parking is versus where the pedestrian access is would make walking around a lot more inviting and a lot more feasible. And in other cities in Texas that I visited and talked to folks, they’ve made that kind of choice.

They’ve put their parking lots outside of the downtown core, outside of the historic center of the city. And that simple choice unlocks a whole host of community benefits for people moving around on foot, in a wheelchair, in a stroller, whatever their modality may be, but moving around at that pedestrian or person level from business to business and from, you know, park to recreation.

I feel like there’s that as well, like p- protecting people from something because they decided to prioritize cars over people.

But that retaining wall itself is also very dangerous because now you risk crush injuries or stampede kind of situations, particularly if there’s some kind of emergency in the bar or in one of the other establishments. And so you’re absolutely right. The logical thing to do would be, okay, we know that there are two nights out of the week when, maybe more, I don’t know.

Um, a couple nights out of the week or on a game day, for example, where this sidewalk is going to be packed with college students and other visitors to the game. Um, we should close the street, or at the very least narrow the street on those days to create more space. And so the choice to solve this problem with the retaining wall, I think you’re absolutely right, illustrates exactly the prioritization that gets made too often for cars rather than pedestrians.

But it also illustrates how even in a very car-centric part of Texas, again, my point, not every sidewalk is the same and not every block is the same, but that one absolutely needs more sidewalk attention. And the good news is officials in the city are aware of this and want to pay attention to this problem.

But, you know, they’re up against these same constraints. We talk about preferences for cars. We talk about preferences for what uses of the public right of way are deemed to be valuable or socially important and what uses aren’t.

It was really fascinating to read about how new laws are actually making it so these cities, like, are thinking about densifying. In planning school, we had T-shirts made up that said, “In the ETJ, nobody can hear you scream,” which is the extraterritorial jurisdiction, which is, you talk about in the book.

But I find that fascinating that because the state is trying to allow cities not to, you know, annex, they’re actually making it so they wanna densify and which creates more demand for sidewalks, right?

Uh, that would be very easy to dismiss as, oh, no one’s actually thinking that way, but they really are. So as you’re saying, annexation is what enables a city to grow outwards, right? It enables a city to sprawl, and folks who are outside of the city often don’t want to become annexed by the city. They enjoy the benefits of often lower tax rates and greater control over public services outside of the city.

But they got to live right on the edge, and so they can take the benefits of the city, go in for their job, go in for culture and whatnot, but be outside of it and save their tax dollars. Cities, of course, don’t like that dynamic. They wanna expand, capture that tax revenue, and also oftentimes they view expansion outward as the solution to a growing population.

But the problem is that that generates sprawl, and that’s bad for the environment, and it’s bad for, frankly, everyone. And so Texas changed its state law to prohibit municipalities from involuntarily annexing territory. So essentially, they can grow outwards, but only with the consent of the people in that ETJ, in the area that they’re trying to gobble up.

And as I was just saying, a lot of those folks aren’t gonna give their consent ’cause they like not being part of the city. And so given that dynamic, you’re likely to see less annexation happening because you’re gonna get consent a lot less often. And so cities that face, at the same time, the same growing population and the same growing demand that they were facing before are gonna have to densify to accommodate that demand, to grow upwards at least rather than outwards.

And yeah, that’s gonna mean more demand for sidewalks, more demand for space in general. The folks in College Station that I was talking to were thinking ahead to a future where there were more high-rises and more density sort of along the level of even parts of Manhattan in New York, that that might be the im- you know, immediate area right around the university.

Now- They don’t know, I don’t know whether it’s gonna become quite like that, but I applaud their thinking that you have to plan for that to be coming in the future. Plan that infrastructure now rather than be caught flat-footed when you end up in that kind of situation and you’re looking around for where can we put all these cars, right?

Rather, try to create an urban environment that is already walkable so that increased density can fold into a community that’s already built for it. So this is one of the many examples of how other areas of law and policy have these ripple effects on uses of sidewalks and vice versa.

I know that at Texas, the university neighborhood overlay in the, in the early 2000s basically allowed the university to densify right next to campus, and, um, it resulted in a reduced VMT because students were walking, right? They’re walking- Yeah … to school instead of taking the bus or, or driving, and mostly driving.

Yeah. So it’d be the same kind of situation, and so I’d be interested to see, like, a before and after about how much walking they can generate, how much use of the sidewalk they can create.

Right. And so I’m curious, how do you think that the ADA sees sidewalks? Are they public? Are they private? Who is supposed to be in control of making sure the ADA is followed? It’s one of those laws that has really, I think, impacted sidewalks intensely.

Because the ADA operates, or in this context, obligates local governments. So the obligation for accessible sidewalks, accessible streets, that is a governmental obligation. It’s not a private obligation. When it comes to curb cuts, for example, that is something that the governments and cities do handle.

Now, they don’t handle it as well as they ought to or as promptly as they ought to. It’s something that a lot of the cities that I visited for the book are taking really significant efforts towards, sometimes ’cause they were sued and now they’ve been forced to, sometimes ’cause they’re concerned about getting sued.

Or sometimes because it’s the right thing to do. And so that is a area where the law matches the reality in terms of who’s, who’s responsible and who really is handling that work. For my mind, the more difficult accessibility questions on the sidewalk arise not with the curb cuts, but just with the rest of the sidewalk.

So once you’ve safely gotten onto a sidewalk, you have to continue going to your destination, and that’s where obstructions like other uses of the sidewalk become a problem. It’s also where the terrain of the sidewalk becomes a real issue. So uneven concrete, pavers that have been sort of thrown upward by tree roots or things like that or, or have crumbled due to, you know, damage, traffic, water.

Also, removal of snow and ice in the wintertime becomes a real issue. Those are the, I think, more salient accessibility problems that often don’t get the same attention as the curb cuts do. And part of the reason they don’t get the same attention is that even though those are by federal law government responsibilities, as we were saying, all these maintenance obligations for the sidewalk, cities have made those private responsibilities.

And so there’s a very strange and frustrating accountability gap here, where federal law obligates municipalities to have these sidewalks be accessible. But the municipalities have sort of foisted that obligation onto private owners in a way that is not really a way out of the ADA, but as a practical matter makes getting accessibility that much more difficult.

When you talk to cities, when I talk to city officials about how to rectify this situation, as I was saying, there are a lot of things I think we can do differently, and one of them is much more government responsibility for sidewalk maintenance rather than private responsibility, and the accessibility concerns are just one of a number of reasons why that would be valuable.

One of the most frequently sort of invoked concerns is cost, right? It would be very… It would be expensive for municipalities to do that. I have some answers to that as well, and we can talk about that. But from the ADA’s perspective, from federal law’s perspective, you know, the cost of making something a- accessible is sometimes but not always an excuse for not complying with the ADA.

And so in teasing out exactly where in the statute cost can be a justification and where it can’t be, again, that’s complicated and l- again, a little frustrating. But to the extent that cities want to invoke financial constraints, even if that were to alleviate some or any of their legal obligation, it doesn’t change the facts on the ground that this is still a policy problem.

It is still a real-life problem for people, and we need to figure out better ways to address that.

There was actually, a couple days ago, there was a report from Tulane University, a research paper that said they need to start moving the, the city now because- I saw that … by the end of the century it’s gonna be gone. Which makes sense, ’cause it hasn’t been replenished, uh, the same way. We can go into all that stuff.

But it’s interesting to see places like that where the sidewalks just are, are gnarly. You know? Yeah. They’re, they’re all over the place. Denver with the flagstone, et cetera, like- Mm-hmm … it’s hard to keep them repaired because they are just subject to the forces of nature.

I sympathize, right? In New Orleans in particular, you’ve got the combination of the city is sinking and the big tree roots are pushing upward. The sidewalks are in… The roads too, for that matter, are also in pretty terrible shape in New Orleans. But sidewalks in large parts of the city are just not accessible to folks with mobility limitations, and they’re really, frankly, not that accessible for folks without those limitations either.

What I find interesting about New Orleans, and they’ve also had similar ADA litigation that I write about in the book regarding curb cuts and the like. What I find interesting about New Orleans is that the state of the sidewalk, how things look, reads very differently depending on the surrounding amenities in that neighborhood, right?

When those big trees are the reason why the roots have buckled the sidewalk, but you look up and you’ve got this huge tree canopy and it’s very pretty and all of the rest, it starts to feel rustic and interesting and touristy. But when the sidewalk is in really bad shape in a neighborhood that really doesn’t have a lot of tree cover, but it’s baked in the sun, or it’s eroded because of floodwater or rain or other sources of, as you were saying, weather stress, you have a similar accessibility problem, but without any of the sort of, oh, this is so charming.

And that, as I was saying before, that also tends to track the sort of wealth of those respective communities. And so trying to figure out how to get the sidewalks under control in a way that is cost-effective in these cities with these really, really, um, almost insurmountable natural challenges. You know, I don’t pretend to have a solution to that.

I can’t, I can’t stop, uh, the city from sinking. Although I will say officials in New Orleans are working with, for example, folks in Amsterdam who are well-acquainted with what it’s like to have a city beneath sea level to try to figure out what could they do better to manage the water rather than just trying to hold it back.

But how do we integrate it into the city canals or other things like that to make it less of a fight against nature? And I hope that they do manage to make some, some strides on that front. Like I said, I’m sympathetic to the problem. The thing is, a sidewalk can also become an ally in a lot of these fights, right?

So a well-deployed sidewalk can also have more space for drainage, more space for water absorption, bioswales, gravel gardens, things like that, rather than just impervious surface. And so thinking about how can we not only look at sidewalks as a challenge, but rather as something we can deploy in the fight against climate change and in the fight for climate resilience, I think that’s a really important step for cities to start taking.

Absolutely. So there’s all kinds of really cool, like bioswales and whatever else- Yeah … you know, technologies that we could deploy, uh- Yeah … that use the sidewalk. Obviously, as you mentioned in the book, there’s accessibility issues related to those things too, but it’s really fascinating to see kind of how advanced we’re getting with some of these things drainage-wise.

So Denver in the last, it’s now almost four years ago, a voter-led referendum was adopted in Denver to change how the sidewalks are maintained and funded. So Denver had had this system of private responsibility and private funding obligations that we were talking about earlier for a very long time. Now, under this referendum, the city’s Department of Transportation and Infrastructure, DOTI, is in charge of maintaining and installing sidewalks in Denver throughout the entire city, and this is funded with a small fee imposed on property owners.

There had been- Ongoing debate back and forth about exactly how the fee would be calculated, whether it be by linear foot of frontage on the street or whatnot. They ended up landing on more of a flat fee kind of arrangement, one fee for residential properties and one for commercial properties. But that’s projected to bring in sizable amounts of money that would now be able to help the city pay for all these improvements and all the sort of regular maintenance.

What I think is so important about this story is, is two things. One, the role of the public. So this was a activist-led referendum, uh, organization called Denver Deserves Sidewalks, led the charge here, right? Recognized a problem, understood that there was a way to do this better, and engaged one-on-one with their community, stood on those very sidewalks to collect signatures for the petition they needed to get the referendum on the ballot.

Took local officials, took their friends and neighbors on walks around the most sort of damaged areas of the community, so people could see the nature of the problem. And ultimately, they convinced enough of their neighbors that this was a, an important change and the right thing to do. The second thing is, it’s not just a matter of if I have to pay for it in the form of a fee or a tax, well, then I, as a property owner, am paying for sidewalk maintenance, and if not, I’m not.

I think a lot of the opposition to municipal responsibility is it’s gonna raise people’s taxes. It’s gonna raise people’s, you know, expenditures to the government. And that might be true, but it is not the case that their sidewalks are being maintained for free right now. In fact, they are the ones paying for it.

It is a system of private responsibility. They don’t pay for it regularly, and so it’s easy to not perceive that obligation, not perceive that cost. But that, in fact, is part of what’s bad about it. You can’t budget for it. It’s when the city alerts you that the sidewalk in front of your property is now damaged to the point of non-compliant that you will face a thousands of dollars bill to repair that sidewalk.

Wouldn’t it be better to just regularly pay a much smaller amount of money to the city every quarter, however they assess it, and then not have to worry about that problem anymore, and to h- be able to know that wherever you go throughout the city, sidewalks are gonna be usable and accessible regardless of whether that particular property owner has paid their bill to take care of it?

Um, I was talking to the former mayor of Ithaca, New York, Svante Myrick, who Pioneered a similar system in Ithaca, and he likened the old way in Ithaca, or the old way in Denver, the current way in many cities, to a game of sidewalk roulette, where a property owner didn’t know when they were going to end up facing this bill and these costs, and where walking around, a person wouldn’t know whether the sidewalk they’re going to encounter on the way to wherever they’re headed was gonna be accessible or safe or not.

Trying to stop that game of roulette and just say, “We’re all gonna pitch in and handle this together,” just like we do, by the way, for the streets and the parks and any other public space, is actually more equitable and more efficient, right? More likely to actually get the work done at lower net cost because cities can do more coherent planning and maintenance of an entire block rather than bits and pieces one at a time.

I mean, I’ll, I’ll just say, people, people don’t like their condo fees. People don’t like their HOA fees, right? But the point is- They’re there

Sometimes we just don’t notice that cost, and so then when it becomes salient, we get upset about it. But once we remember and realize that all of these things have a price tag, we’re just trying to choose which one is the one we should be spending. Once you see that, the idea that we should all be contributing to the maintenance of public space together makes a lot more sense.

Yeah. Uh, and it made me think that our city budgets don’t really reflect that change. Mm-hmm. We spend so much money on fire and police now. Like, there was a thing in social media the other day in San Francisco, you know, it was a chart, and it showed all of the highest paid employees in the city of San Francisco, and the ones that were, like, police and fire were in yellow, and everybody else was in black or whatever.

And there’s a lot of yellow dots- Mm-hmm … on there. Mm-hmm. And so it’s interesting how much of the stuff that is related to the sidewalk that is, you know, ultimately the budgets for cities go to our first responders, and that might not be the best place for it to go, but they’re the ones that are tasked with taking care of all this stuff.

What if we took some of that money and used it for other things that they don’t really wanna do?

But another way is to reprogram existing revenue, right? To reallocate what we spend money on. One thing could be to change how we decide who is policing the space or who is maintaining order, I should say, on the sidewalks. One of the most challenging conflicts, one of the most challenging aspects of sidewalk management and life is the problem of homelessness, which is a serious problem for sidewalk safety, for sidewalk usage, for sidewalk accessibility.

At the same time, we have to find ways to manage the problem that aren’t what we’ve been doing, which is primarily policing-led or incarceration-led. And the basic reason I say that is because we’ve been trying that for a very long time, and it hasn’t worked. If it worked, we could have a conversation about whether it was moral or appropriate.

Um, but I do know it doesn’t work, and I’m a fan of doing things that work. So I think it’s time to try something new. That something new could be different municipal agencies that have more responsibility for dealing with the problem of homelessness, whether it’s intervening with the individuals, managing the space, and so on.

But it also could mean spending more money on building supportive housing or on drug treatment programs or mental health treatment programs or job training programs, right? Things that actually address the root causes of homelessness rather than just the individuals on the sidewalk. And so when, again, when we talk about there’s only so much money in the budget, that’s true, but we then make choices about what to spend that money on and, you know, as the old saying goes, a budget is a reflection of a community’s values.

And Our values, I think, ought to be much more oriented toward what we actually see, which is communities that want to be making more vibrant and safe use of public space. And so if that’s what communities are wanting to do, we should spend more money on making sure that we can make that happen, and that, among many other things, might mean changing how we do public order in that space.

And so that’s why all of these uses have to be regulated thoughtfully with a wide-angle lens and an eye toward making the space as effective and usable as possible. I just don’t think that means locking up the people who are using it perhaps in antisocial ways. But we can’t overlook the fact that antisocial uses are antisocial, and we do need to do something to address them.

And it’s the same with sidewalks, right? I think it’s the same thing as, like, sidewalk vendors, the people that are paying for property taxes are frustrated by this. And so there’s that kind of tension between folks that should be allowed to, like, show people what they can do with their art or with their skills versus the public interest of the property owners and the folks who are paying such high property taxes and rents and things like that.

They’re not wrong that, that it’s competitive, right? But they also don’t control that space. It doesn’t belong to them in the same way that they don’t get to dictate whether the building next door to theirs becomes a competing restaurant or a competing bookstore, nor do they get to dictate what’s happening on that sidewalk.

But you can almost understand why they think they do because the city tells them they have to pay to maintain it. They have to pay to shovel it. They’re responsible for what happens there. In New York City, they’re even responsible if people get injured on the sidewalk in front of their property. And so shouldering all those responsibilities, it does start to feel like, “Well, then shouldn’t I also get the benefit of excluding competitors from that same space?”

I understand where they’re coming from, and that’s why I think the right size solution is, “You know, you’re right. You don’t get to exclude anybody, and that’s why you also shouldn’t have any responsibility either,” right? Now it’ll be, now it’ll be fair. I have to note one other fun thing about the vending.

So in some municipalities, there are rules about needing permission from a certain set of the, you know, competing restaurants in a given radius, what have you. In New York City, when it comes to the sale of Christmas trees, uh, which is a, a common sidewalk activity, a vendor will set up a little stand of Christmas trees on the sidewalk.

Under city law, that actually affirmatively requires the permission of the adjacent property owner to set up that Christmas tree stand. Why, I can’t really say. Um- It’s an

Yeah. You say, like, who knows? Who knows? Who knows what that is? Yeah. But they’re in the codes. They’re buried deep in the codes. I’m sure there’s all kinds of, like, little things like that that are buried deep that we don’t quite understand, but are just stuck in there. It’s old code.

Um, because you get to, if you’re like me, you get to sit around and look in these codes, and you find really interesting random old stuff, um, as well as sometimes some really problematic old stuff or problematic new stuff.

That’s a, that’s a loaded question.

We have rights to speak. We have rights to protest. We have our First Amendment rights. We have our Fourth Amendment rights to be free from unreasonable searches and seizures by the police. I don’t get into this in the book, but sidewalks also raise Second Amendment concerns about the freedom to carry weapons openly or concealed.

So we have our constitutional rights on the sidewalk, and yet the law, the constitutional law, as well as what cities have in fact done, has limited all of those rights, sometimes in the name of public order, as we were discussing before, and sometimes in the name of protecting the adjacent property owners.

So for example, you do get to protest and picket on the streets, but- The courts have said it’s okay sometimes if a municipality says you’re not allowed to do that in a residential neighborhood. Sometimes that’s gonna be upheld. Why? Because the owners of those homes or the residents of those homes deserve their peace and quiet, even if, you know, or perhaps especially if they are the target of that protest.

But we are in fact free to picket in front of commercial establishments. That’s well established. We’re free to, as I was saying before, engage in signature gathering for petitions, referendums, things like that on most sidewalks, except sidewalks at post offices, where there’s a whole line of cases where that’s deemed to be obstructive of important federal, uh, efforts, right?

When it comes to policing and our right to be free from unreasonable searches and seizures, well, that’s true, except that we can be stopped by the police and briefly frisked by the police. If you put your garbage out for collection on the sidewalk, which in New York City, that’s what we do, that garbage can be searched by the police because it’s considered abandoned property.

And then there’s all of the new technology surveillance architecture that is deployed on the sidewalk, so that’s cameras or license plate readers or facial recognition. None of that is really governed by our current Fourth Amendment law at all. So yes, are we free on the sidewalk? Absolutely. It is public space.

It is not private space, therefore we have constitutional rights. But those rights are not quite as capacious as I think we often think they are. Now, when I say that, I don’t mean that we automatically don’t have the right to protest in a residential neighborhood or that we don’t have XYZ rights from unreasonable searches and whatnot.

Rather, what the Constitution tells us is that, or at least how the courts have interpreted the Constitution, what it tells us is that governments have the ability to prohibit us from protesting in a, in a residential neighborhood. They have the ability to instruct their police officers to stop and frisk folks in these ways.

It doesn’t mean that they have to make those choices. It doesn’t mean that we as voters have to make those choices either. And so part of my message in the book is when we think about what we want our public life to look like, that includes what we want our speech, protest, policing, surveillance public life to look like.

And we have more, we as voters have more of a role to play here than I think we often think we do. The Constitution does not answer all of these questions one way or the other. It leaves them to the local political process. And so if you don’t like what’s happening, you can and should vote for something else.

It’s the police department. It’s the fire department. It’s also oftentimes, um, some public-private partnerships, right? So that might be bike share docks or advertising in bus shelters. There are so many agencies, and it can become very, very challenging, A, for regulated entities, so property owners, businesses, residents, difficult for them to know what the rules are or who they need to get permission from for what.

That kind of s- bureaucratic red tape is a real obstacle for a lot of users of the space. A one-stop-shop department of sidewalks would cut through a lot of that red tape and create an easier permitting regime for all of these uses. But it’s also a problem, that fragmentation is also a problem when it comes to thinking about coordination among those different departments, right?

So one department might grant a particular permit, and another department might grant a different permit. They’re each under their own silos, their separate purviews, but those uses end up conflicting with each other, or they end up making it harder for a person to get by in a wheelchair because neither of them was really thinking about that.

And so, as I was saying before, this wide-angle lens that’s really necessary for effective regulation and maintenance of the space, this department is what I have in mind in terms of being able to– being responsible for developing that wide-angle lens and then being accountable to acting on it. The other thing that this, that this department would do would assume these private responsibilities that I’ve been critical of, right?

So the, the private maintenance, even the private snow clearing obligations. Although when I’ve talked to local officials who are on board with a lot of this idea, I lose them at the snow. That’s, that, that’s often where they say, “That’s one bridge too far at this point,” but I’m working on convincing them of that.

Um, so it would also assume these private responsibilities and put individuals and businesses out of the sidewalk responsibility business and out of the sidewalk ownership business as well. So that’s the idea. Make this more consolidated in government and then consolidated within government to avoid these gaps in accountability or these sort of oversight problems that result from too many cooks in the kitchen.

Because they should go get one.

Um, I am on Twitter, @michaelcpollack, P-O-L-L-A-C-K. That’s probably the best place to find me.