Sidewalk Nation

This episode provides an exploration into the urban fabric beneath our feet—sidewalks. These concrete pathways, often overlooked, hold a tapestry of legal, social, and economic narratives as revealed in during the conversation with author Michael Pollack on his book "Sidewalk Nation: The Life and Law of America's Most Overlooked Resource." Pollack's research traverses various states—New York, Colorado, Texas, and Louisiana—to uncover both shared challenges and unique approaches in sidewalk management. Despite the diversity, the common thread remains the universal demand for high-quality sidewalk space and the limitations posed by existing legal and financial structures.

Show Notes:

• Further Reading:
  • Paved Paradise: How Parking Explains the World by Henry Grabar
  • Street Fight: Handbook for an Urban Revolution by Janette Sadik-Khan
  • Walkable City: How Downtown Can Save America, One Step at a Time by Jeff Speck
  • Dividing Lines: How Transportation Infrastructure REinforces RAcial Inequality by Deborah Archer 
  • Segregation by Design: Local Politics and Inequity in American Cities by Jessica Trounstine
  • Inclusive Transportation: A Manifesto for Repairing Divided Communities by Veronica Davis
• Vital City oped mentioned in the episode: https://www.vitalcitynyc.org/nyc-department-of-sidewalks-agenda/ 
• To help support the show, pick up a copy of the book through our Bookshop page at https://bookshop.org/shop/bookedonplanning or get a copy through your local bookstore!
• To view the show transcripts, click on the episode at https://bookedonplanning.buzzsprout.com/

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Transcript

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Stephanie Rouse: [00:00:00] [00:01:00] Welcome back, bookworms. I'm Stephanie Rouse. 

Jennifer Hiatt: And I'm Jennifer Hyatt 

Stephanie Rouse: And we're the hosts of the Book Town Planning Podcast. In today's episode, we talk with author Michael Pollak on his book Sidewalk Nation: The Life and Law of America's Most Overlooked Resource. At first, I was, a little intrigued that there was an entire book all dedicated to one piece of infrastructure, the sidewalk, and it came actually at a really good time, professionally.

Our city is actually doing a lot of work around organizing departments to better engage around sidewalks and discuss how we can better take care of our sidewalks, get sidewalks built, and not duplicate resources or overlook anything, which is [00:02:00] a key aspect in his book. He repeats over and over this idea of a department of sidewalks.

Jennifer Hiatt: Yeah. You know, I have to admit that I never really considered sidewalks much at all until I started doing work in downtown and having to think about all of the different ways in which we could potentially utilize sidewalks. So it was really interesting to hear Michael's take on some of that and how he thinks about this Department of Sidewalks and how that should work to try and balance out all of those needs.

Stephanie Rouse: I also thought it was really interesting reading the legal aspects and how there is or is not authority for cities to push their responsibilities onto private property owners to maintain sidewalks that are actually in the public right of way, and then the different case law over the years that have created certain abilities to protest on sidewalks and such.

Jennifer Hiatt: Yeah, I think I would've paid better attention in my constitutional law classes if, my professors had broken them down the way that [00:03:00] Michael did. The book is really accessible, so if you've ever wondered why protesters need a permit, Michael has the answer f- for that in his book. 

Stephanie Rouse: Yeah, I really appreciated that.

Like, you're ... You've got the law background, but from someone that doesn't understand legal case law and hated that class during my master's program, it was actually a very easy-to-read book. He makes it a lot simpler. 

Jennifer Hiatt: Yeah, and that's why this podcast works. We have different perspectives. 

Stephanie Rouse: Yeah. 

Jennifer Hiatt: So let's get into our conversation with author Michael Pollak o- on his book Sidewalk Nation: The Life and Law of America's Most Overlooked Resource.

Stephanie Rouse: Michael, thank you for joining us on Booked on Planning to talk about your book, Sidewalk Nation: The Life and Law of America's Most Overlooked Resource. To start off, what spurred you to write a book about, as your title suggests, a somewhat mundane topic? 

Michael Pollack: First of all, thank you guys for having me.

It's a real pleasure to be here. I was like many people and I hope, I think like many of the, the readers of the book who [00:04:00] spends a lot of his time walking and using the sidewalk, but never really thought very much about what I was doing and what I was using and how this space worked.

 my work generally, I'm a law professor at the Cardozo Law School in New York City, and my work generally focuses on property law and local government law, and specifically how institutions of local decision-making, whether they're in government or outside of government, resident groups, things like that how these institutions make decisions that impact and shape the built environment and that shape our daily lives.

Essentially, how do these processes and how do these laws affect our ability to flourish as communities and as individuals? And so I've been exploring a lot of those questions in the context of land use planning, zoning, eminent domain, things like that for years. And it was really during the height of the pandemic, now a little over six years ago, where, like a lot of folks, I was spending my time [00:05:00] taking long walks around the neighborhood for exercise and mental health.

 And also again, a lot of folks engaging in socialization on the sidewalk commerce on the sidewalk. That summer, of course, we also saw a whole lot of protest activity taking place in our streets and sidewalks. And to say nothing of the COVID testing tents and the vaccination tents and whatnot.

 So I saw a lot of really salient high degrees of use of this space, and it really jumped out to me as, A, this is fascinating and look at how vital this space is. And it's, again, not something I had ever thought of, and as I researched it, it turns out it's not something a lot of people have given much thought to.

 But with that, how vital it is, on the other hand, look at how chaotic it can be and how all of these uses, if they're not carefully structured and regulated and planned can result in actually degrading the quality of the experience [00:06:00] and the utility of the resource rather than enhancing it.

 And during COVID, I was concerned that I was seeing a lot of that and so I wanted to explore that further. And of course, that moment in our lives and in our history has passed, thank goodness. But Once I started looking at it and really focusing on it, it turns out this was always there, and it's still there now.

 It, for me at least, it took that experience to open my eyes to it. But it's always been there. It's been there for as long as we've had sidewalks. That's been a very long time. And it's still there now. Obviously different degrees, different manifestations at different times in different communities.

 But the core questions, and at least the, the risks that I perceived, those are persistent and pervasive, and I wanted to write the book to explore them and bring a law professor's lens to a lot of them, see how and show how so many areas of law and policy interconnect on the sidewalk. And then also offer some solutions or some ideas about how we might do things a little bit [00:07:00] better.

Jennifer Hiatt: When I started my job with the City of Lincoln also hi, fellow lawyer and government law nerd here one of the first jobs that I actually was handed was our sidewalk cafes, and how to make them friendlier to the cafe aspect of it. And that's the first time that I really started thinking about sidewalks and their chaos-ness.

 And speaking of how old sidewalks are, can you give us a little on them? Because I actually I can't believe I'd never really thought of it, but I really never thought about how old sidewalks actually are. 

Michael Pollack: For a long time they were not nearly as pervasive as they are now.

But you can find evidence of sidewalks in the ruins of Pompeii. You can find evidence of sidewalks in archeological digs in what parts of what is now Turkey. In the United States or what is now the United States, there were sidewalks in the French colony of Louisiana in New Orleans.

 There were sidewalks in what was then New Amsterdam as a Dutch colony that's now, of [00:08:00] course, New York City. There are sidewalks in London, Paris, whatnot, in the 1700s into the 1800s. So we've had them for a very long time, at least the idea of them. Now, they served very different purposes, focusing on the United States.

 For a very long time, sidewalks were primarily seen as or understood as an amenity for a particular property owner, homeowner, business owner, what have you. They would build that sidewalk, essentially a raised wooden platform over the gutter in front of their business or in front of their home so that patrons or guests or the owners themselves wouldn't have to step into the horse waste, the cholera-infested water or whatnot that might be flowing down the gutter of the street, and would have this lifted up platform to be able to get, from a horse or a carriage into the building.

 That was primarily what they were for. And so for a very long time with that framing and that purpose in mind, local governments took the [00:09:00] position that they were the financial responsibility of that property owner And so that legacy of private owner responsibility for sidewalks persists in an overwhelming majority of jurisdictions today, even though, of course, the sidewalks now serve a wildly different set of purposes, and both property owners and the general public have a very different set of expectations and relationships about this space.

 That's one of the things that I think we get so wrong about that policy choice today. But it is rooted in large part in that history. 

Stephanie Rouse: Yeah, so you're leading into this next question about how today we largely accept that private property owners it's their obligation to maintain the sidewalks, but basic property law principles would not impose this obligation.

How did we get to this point? 

Michael Pollack: Yeah, that's exactly right. So let me first explain what those principles are, and then I can back into how we got there. In many cities and [00:10:00] towns, and just parts of cities and towns, the sidewalk is public property. And when I say public property, I mean that the private property line for the home or the building off to the side, that property line ends at the face of the building or at the edge of their lawn.

And so the sidewalk is sitting on public land the same as the roads are. That's one way that sidewalks exist. Now- Even in those jurisdictions it is often still a private responsibility to care for that space, even though it is literally public property. In other jurisdictions, the sidewalk does sit on private land, so the private property line might run to the curb.

In some jurisdictions, it might even run into the center of the street, and so both the road and the sidewalk are sitting on private property. But in those cases, the public has what's called an easement, a right of access to that space. And so from a person's perspective, taking [00:11:00] a walk or r- driving in a car, they're not gonna notice any difference between whether it's the kind of sidewalk or road that's sitting on public land or the kind that is characterized by an easement on private land.

So from the public's perspective, there's no difference. And now you might think, ah, but from a legal perspective, there is a difference, and that would explain why sometimes the property owner has to take care of it and sometimes they don't, right? You might say, when the sidewalk is sitting on private land, should be a private responsibility to take care of it, and conversely, when it's on public property, it should be a public responsibility.

 First of all, no, that's not even the rules as they exist, but it's also not what the basic principles of property law would say. Property law generally begins with the premise that we take care of our property, and we are not obligated to care for other property. Even when we own land and there is a public easement on that land, or I should just say any kind of easement on that land, the easement holder is the one who has the [00:12:00] obligation to take care of and maintain their right of access.

 Essentially, the only thing that the underlying property owner is obligated to do is not obstruct that access. But they are under no obligation to make that access smooth or nice or free of snow or free of cracks. That is the easement owner's obligation to do. So if this were any other setting- Whether the sidewalk sat on public land or sat on private land with an easement, it would be a public responsibility to maintain it.

And yet, it's the exact opposite almost everywhere. Not universally, but in the overwhelming majority of cities and towns, it is a private responsibility to maintain the sidewalk even if it is on public land and even if it is on private land with this public easement. And when I say maintain, that includes clearing snow and ice.

 It includes repairing it when it cracks, when the concrete buckles with tree roots or whatnot. It includes clearing litter or branches [00:13:00] that fall. It might even include installing sidewalks in the first place if the city wants there to be sidewalks there. So all of this is a huge financial burden on property owners and, as I've been saying, it's one that is not justified by basic property law principles.

So that brings me to your question why then? What does justify it? And my answer is very little. again, there, there is this historical sort of root of sidewalks being associated with a private property owner's benefit. And so that sort of legacy and the inertia from that legacy is a big part of it, that's just how we did it originally and it's how we have kept doing it.

 And it's been pretty consistent, I should say. There are cases from the 1800s, 1900s, of course into today, where property owners are complaining about, suing about being fined by their city for a dollar, $2, $4, big money back in the 1800s for not clearing the snow and whatnot. And so these were [00:14:00] controversial.

I, want to be clear, it was not the case that everyone just accepted that this was how it ought to be. People were upset about it. They sued about it, but they often lost these cases. They almost always lost these cases. And that's because, A, of th- this, this legacy, but B, local governments then and now just find it easier, cheaper to offload this responsibility onto private hands.

And, I sympathize to some degree. Obviously, all of this stuff costs money. Clearing the snow, maintaining the sidewalk, all of it costs money. Cities everywhere are cash-strapped where it's hard to find the resources for a lot of things that we want our cities and towns to do. But there are serious inefficiencies and inequities associated with putting this responsibility on private shoulders, and we can get more into those if you'd like.

Jennifer Hiatt: We have a kind of a interesting setup here in Lincoln. We did have a citizen get very upset with the way that sidewalks were being maintained. [00:15:00] And they did not attempt to sue us because they knew that they would not be successful, and so instead they did a ballot initiative. And so now physical repair of the sidewalks is supposed to be the city's responsibility.

Snow removal is still on the resident, but we don't have enough money to maintain our sidewalks, so we still end up with really crappy sidewalks, but now everybody gets to blame the city instead. 

Michael Pollack: So there's a couple things that that I wanna point out about that, which is it a great point, and something that is, also not entirely uncommon.

So we do have cities and towns starting to move in the direction of more public responsibility As, as you mentioned a, voter referendum, Denver had a, I think, pretty noteworthy one in 2022, making them now the biggest city in the country that has municipal responsibility for sidewalk maintenance.

 Smaller towns in upstate New York that I write about in the book Lexington, Kentucky as well. So there are a bunch of them. I'm glad to know Lincoln's on the list too. And, I think that's the right policy choice. It's the right [00:16:00] thing to do. Both, as I was saying, it, fits how the law ought to operate.

 It also, I think, it's logical. Imagine if we had the law say that homeowners had to not just shovel the snow on the sidewalk, but also plow the snow in the street, or not just fix the sidewalk, but pave the potholes in the street. I think people would justifiably revolt at the idea of being made to do that.

 And the point I wanna make is that there's actually no legal difference between that hypothetical about the roads and the sidewalk, and yet we treat them so differently really problematic consequences, right? Which is that the sidewalks in poorer neighborhoods are often in less good shape because the residents and the property owners there don't have the money to fix them.

 And that's particularly problematic when one considers that it is those very homeowners who are often the most reliant on the sidewalks because they have lower rates of private car [00:17:00] ownership. The access to public transportation is often worse in those communities. There's a racial justice angle to this as well, in that nationwide at least white individuals are three times as likely to own cars of their own as of people of color.

 There's a real disconnect between what we need in terms of making sure that our city's resources are equally available to everyone and the legal structure that we've set up. Now- It's not enough to just say, "All right, we're now gonna make this a city responsibility," if that doesn't come with resources for the city to effectuate that responsibility.

 in Denver, for example, this voter referendum to put the responsibility on the government's shoulders came with a new sidewalk fee, essentially impact fee imposed on property owners quarterly with their property taxes. One rate for residential property owners, one rate for commercial property owners.

 And that money is not just going into general revenue, but is devoted specifically to the sidewalk funding pot. Other cities [00:18:00] and towns have, pursued slightly different approaches, some of them varying the fee based on the frontage of the parcel, right? If it fronts more sidewalk, they pay more.

 So there are a lot of ways to go about doing it, but the point I wanna really emphasize here is it's not the case that the status quo is free. I think a lot of times property owners who don't experience a bill to repair their sidewalk and it could be for years and years don't even really know that is their legal responsibility and that someday they'll get that bill.

 And so it's relatively easy to go through life thinking that the sidewalk is being provided and maintained for free or by the government out of general revenue when that isn't true. And so once we realize that someday we will all have to pay our sidewalk repair bill, to say nothing of whoever we pay to clear the snow or the value of our own time if we do it ourselves, we're already paying for sidewalks.

So the question is not pay for it by paying the government to do it [00:19:00] or do it for free by doing it ourselves. The question is which of those two things would be cheaper per property owner? And there's a lot of reason to believe that it would be cheaper per person if we did it collectively through the government, because the government can take advantage of all of those economies of scale that come from being able to do work more efficiently at a whole block at once, and is justified investing in the kind of technology and tools that would make doing it a whole lot easier.

I-I live in New York City in a condominium building. to clear the snow off the sidewalk in front of our building, we have a shovel, right? It makes no sense for us to invest in a snowblower, let alone one of those little, sidewalk snowplows, right? Why would we invest in that?

We don't have enough space to make that worthwhile. But the city absolutely has a reason to invest in those sorts of things if it had that responsibility, and it would be able to clear a lot more space a lot more quickly and a lot more efficiently. 

Stephanie Rouse: Yeah, here in Lincoln, we have a very small budget for sidewalk maintenance, [00:20:00] and they'll do it in chunks of neighborhoods.

And so you're talking about the economies of scale and being able to make it work. They'll go into an area and do all of the maintenance they need in one location versus putting it back on the property owner. 'Cause we also have a program where property owners can pay a contractor to fix their sidewalks, and then the city will reimburse them.

But again, it's an equity issue. You have to have the money to pay the contractor up front to then get reimbursed. 

Michael Pollack: Exactly. Exactly. 

Jennifer Hiatt: Yeah. And I also think I guess just where I land on government, but it is a little bit our responsibility as government entities to capture the negative externalities.

 Because if I don't plow my sidewalk, I might not see the person who needed the sidewalk to walk by because I'm not there, and I just think I don't need my sidewalk." But other people do, and if you're not a good neighbor, you just don't think about that. But a government should think about that.

Michael Pollack: That's so well said. Like you were saying before, one of the big differences now as you were describing in Lincoln is, now people can get mad at the government if it's not happening well. That's [00:21:00] obviously frustrating if you're the government, but that is who should be the people that people are getting mad at, right?

Accountability is so important in how we deal with local resources and local resource management. It's something that I write about in a lot of my other work. And things get difficult when lines of accountability are tangled or unclear, right? When property owners or residents or just people traveling through the city or their town on a day-to-day basis, when they see a problem and they don't know who's responsible for that, they don't know whom to blame, it's really hard for them to blame anybody.

 And either they're gonna blame the wrong people, which is not helpful, or they're just not gonna blame anybody 'cause they don't know where to report it or what to do about it, and the problem doesn't get fixed. And so sidewalks have a lot of this sort of accountability or missing accountability pathology, to say nothing of the fact that the people who are responsible for it, your, your neighbors you can't vote them out of the block, right?

This isn't Survivor. You can't vote them off [00:22:00] the island. And so you have no accountability with them. The best you can do is report them to the government, and the government can spend money to enforce the rules, fine them, and so on. But A, that still doesn't get the problem solved, and B, it's gonna be long after that snowstorm has passed that any of that ends up happening.

Jennifer Hiatt: Yeah, and equally when you have anger and frustration and nowhere to vent it to, it quickly becomes apathy. That's right. And we don't want an apathetic citizenry, residency, whatever word you wanna use there. Because apathy is actually what kills government at the end of the day. Not anger, not support.

Apathy. So That's 

Michael Pollack: exactly right. Yeah. 

Jennifer Hiatt: And you also chose to not just look at the sidewalk from a hypothetical point of view, but you really did actually dig into a bunch of different communities from four different states. So what was the common thread? What drew you to these states and communities?

Michael Pollack: So the book talks through New York, Colorado, [00:23:00] Texas, and Louisiana and a bunch of different cities and towns in those four states. And I chose them frankly hoping to or looking to find not commonalities but actually differences. I wanted to pick on states that were colder and warmer, that might have more of a snow problem versus a rain and flooding problem.

 Red and blue states. Big cities, small towns. different cultures and attitudes toward walking. Texas famously a car culture jurisdiction. New York City at least very much not. Denver, Boulder, known for outdoorsy, hikers and walkers and bikers and things like that. New Orleans with the big tourism industry.

 And look, all of that is true and all of those differences are there, and they manifest in the details and in some of the specifics of what the problems are that those jurisdictions face. But what I found both through visiting these cities and towns, doing a lot of observational work and interviewing a lot of really passionate local officials and business owners and individuals who are doing a lot of advocacy work.

What I [00:24:00] found is that there's a lot more that is similar across these jurisdictions when it comes to sidewalks than there is that is different. Things that are similar include most importantly the demand for sidewalk usage and the demand for high-quality sidewalk space. Even in places like Houston where, it's easy to assume everyone just drives their car and no one uses the sidewalk, and that is a decent description of the reality right now.

 But that doesn't mean that people don't want something else. They don't want some other options. And so sidewalk work is, and sidewalk network expansion and sidewalk improvement is really important to a lot of people, even in a city like Houston. It's really important to a lot of people in all of these cities.

 The bigger issues, again, that unite all of these places are the obstacles, right? Whether that's limited funding, whether that's some of these legal structures that I'm critical of. Everyone's facing a similar set of problems, and some of them are experimenting with different solutions, and I think [00:25:00] that's great.

And that's, again, what I wanted to bring attention to, is how we might learn from one another across jurisdictions and say, "Okay, things are actually a lot more similar than I might have thought. Therefore, I have more to learn than I might have expected from X, Y, Z other city or town." I also wanted to capture big cities and smaller towns, and one of the other things that I think is really important is the problems that we're talking about really are universal, but have a very different set of possible solutions in very big cities.

Medium-sized cities and towns, suburbs, even more rural areas, though they have fewer resources, they also have a smaller footprint of space that they need to take care of, and their existing government is often relatively more streamlined because, again, it's a smaller government. They have fewer people working in the government.

And, we haven't gotten to-- I haven't really mentioned the other big thing I'm critical of in, in many cities and towns, which is there's no real sort of department that [00:26:00] owns the sidewalk. And when I say, conceptually owns. Is responsible for it. And that goes back to our earlier discussion just now about accountability, right?

That's missing. There's really no one who is responsible for stepping back and taking a, wide angle view of the space and all of the uses that are taking place on it and making sure that they are harmonious rather than in conflict with one another. But in smaller cities, that kind of already is ha- or a version of that is already happening when you've got a city manager and a public works administrator, and they basically do all of the public space management, In those circumstances, they are effectively being what I call a department of sidewalks. And so it's bigger cities that have the more complicated bureaucracy that I think need more of that kind of attention to streamline and develop some more focus, or at the very least, some more coordination and consultation when it comes to sidewalk regulation and permitting and management.

And we can talk more about that too. But, I think that [00:27:00] Cities and towns have a lot to learn from each other even when they're very different sizes, right? That, yeah, we can't just pick up the small city manager model and move that to New York City. But New York City can look at that model and say, "Okay, what they have going for them is a lot of coordination and consolidation.

How can we try to replicate that at a larger scale in our government?" 

Jennifer Hiatt: Yeah. The, my favorite community that you looked at was Nederland, Colorado. 

Michael Pollack: I 

Jennifer Hiatt: have a friend that lives there. Oh, really? And it's I've gone to visit her a few times as I was reading I was like, yeah, they really don't care about their sidewalks at all.

Michael Pollack: And they don't have very many. It's, They don't have 

Jennifer Hiatt: any, yeah ... 

Michael Pollack: it, th- Nederland's a very rural town in a, in, in the mountains outside of Boulder. And the sidewalks that they have, there's a few that are, what we might imagine, a traditional concrete sidewalk. Others are a gravel sort of path, Side 

Jennifer Hiatt: paths at best.

Michael Pollack: Yeah ... exactly, right? And that community, a lot of folks in the community don't want more sidewalk. They don't think they need more sidewalk. in fact, they view [00:28:00] the potential expansion of a sidewalk network as a threat to their way of life, right? That it would be threatening to the more rural vision of that community.

And I completely respect that. I think it's important that we recognize that people have, ideas about what a sidewalk means and what it looks like and what it signifies for their community and for their lives. And, a level of we should be attentive to that.

Government should be responsive to the people. On the other hand, there's a real concern that I have with government that is too responsive to the needs or the stated preferences of the loudest that might be obscuring what actually could benefit a much larger polity. So in a place like, like Nederland where the views seem to be relatively uniform that's great.

I have no problem with that. Keep it up, right? But switch to down the mountain, go to Denver, right? There you have pockets of the city that would really prefer not to have any [00:29:00] sidewalks, but that choice is not just about them. As you were saying, there's this negative externality imposed on other residents of Denver who now can't get through that community as effectively.

And frankly, that's often the reason why they don't want the sidewalks, is they don't want people being able to get through their community. And that is not really, in my mind at least a justifiable set of preferences that government should be responsive to, right? Government should be responsible to all of its residents, not just some of them.

 And when hyperlocal preferences are going to undermine what would be the right thing for the whole city, for the whole community, the latter really is what has to prevail. 

Jennifer Hiatt: you have a chapter in the book called Selling the Sidewalk, which did make me laugh. It's a great chapter title. so how in your opinion should cities be thinking about balancing out those commercial activities?

Like I said, my first task was sidewalk cafes- Yeah ... and trying to figure that out. So what, those activities that we have on the sidewalk, but then also valuing the space utilized [00:30:00] by other people. it's only about a 10-foot strip of concrete. What are we gonna do on it? 

Michael Pollack: Exactly.

And in some cities it's even less wide than that. So commerce taking place on the sidewalk is one of the things that makes sidewalks so great. It's one of the things that makes communities so vibrant. And that commerce includes not just cafes and restaurants and bars, it also includes, shops that are putting out, you know, racks of clothing or books on the sidewalk.

 It includes curbside business like food trucks the people waiting in line are waiting on the sidewalk. It includes, especially in a place like Times Square in New York City, buskers playing music, trying to, h- sell things, hawk things, vending. It also includes a lot of new technology including electric vehicle charging.

It includes delivery robots, which I write about at some length in the book because that really to me is the next big sidewalk conflict coming our way is these remote controlled or autonomously driven delivery robots for food deliveries [00:31:00] or packages and whatnot. All of these things presumptively at least are great, right?

They contribute to the local economy. They expand the tax base. They, again, make the space one that folks are drawn to attend and spend time with rather than just pass through on their way to someplace else. The more activated a sidewalk is, the more you have window shopping and unplanned opportunistically motivated spending and that's all great for the business community.

It's great for, again, for sales tax revenue. So all of it's really important and desirable and desired by residents. The problem is if you have all of that vending and all of that selling and all those robots taking place in the exact same space on the sidewalk, not only is there no place for someone else to walk through or, roll a wheelchair through, there's not enough space for all those things to happen, just them, right?

Forget about the pedestrians. There's just not enough space for all that commerce either. So we need to be really thoughtful ex ante about- [00:32:00] What block is this? How wide are these sidewalks? How heavily trafficked are they? And what can we allow here, and what should we not allow here? And that's gonna differ not just community to community, but block by block.

And it's going to require government to get involved and say, "It's not really about what uses are permitted or not, but which ones are permitted where." So that we have enough separation between them that they don't cannibalize one another and that they don't box out other uses of the space.

 The other thing that I think is important to keep in mind in this conversation is the n- sort of fixed non-commercial uses. So that's things like utility poles and parking meters. It's things like bus stops or subway entrances. It's trash, right? In New York City, we're still slowly making the change toward containerized trash, but even the containers, take up space on the sidewalk.

 All of these other uses of the curbside, in many cases also take [00:33:00] up space and are also necessary. In New York City, we have these we call... They're called Link NYC. They're these sort of pillars that have advertising that rotates through some Wi-Fi connectivity that comes out of them, right?

 They take up space also. If you have a building under construction, there's gonna be that, shed to, protect pedestrians from whatever the construction is. That takes up width on the sidewalk as well. And so it's not just about, okay, the whatever office is permitting restaurants has to be really thoughtful about this.

 It's also the Department of Buildings. It's also the Department of Sanitation. It's also Environmental and Public Works. It's also all of the various utilities, right? Or the transportation department that does the public transportation, buses, and what have you. All of those are regulating and imposing on the space.

 And if they're not careful, if they're not coordinating with one another, nothing works. None of that works. And so again, it's about identifying, all right, maybe this restaurant, because right across at the curb from this restaurant [00:34:00] is a bus stop and a utility pole, maybe these ones don't get to have sidewalk dining because there's just not enough room, not only for ADA compliance, but there's just not enough room for anybody.

Maybe this restaurant can have more space and should be permitted if they ask for it. Of course, maybe it means in some blocks we wanna widen the sidewalk and maybe remove a parking lane or remove a lane of traffic if it turns out that all of this demand is really there and we need more sidewalk space to serve it, that's great, and that's a reason to do exactly that.

But if you can't do that, and look, I work in Manhattan there are parts of Greenwich Village where my law school is, where the road is already just one lane wide and the sidewalks are very narrow because it was platted long before any of this was on anyone's mind. There's no place to widen that sidewalk without closing the street to vehicle traffic altogether, right?

 So that's just a fixed limit, and therefore, in my mind, the city should permit fewer uses there. be much more thoughtful and careful about what's [00:35:00] allowed where. Where you can widen it, I wrote a, long op-ed in Vital City, one of our sort of New York City-oriented publication here, In the theater district on Fifth Avenue, especially during, high tourism times like the summer and the winter holiday season, the sidewalks are just not wide enough and it is really not safe.

There are too many people and too many other uses taking place. Those sidewalks absolutely need to be widened. So whether it's a commerce thing, whether it's a accessibility thing, whether it's utilities, transportation, all this other stuff, everyone benefits from the sidewalk, but everyone would benefit more if we were more careful about structuring that benefit.

In the book I talk about what is often referred to as the tragedy of the commons, right? That shared public space is great, but if everyone is allowed to use it to maximize whatever they want to maximize, which is their incentive to do they're gonna end up destroying the thing and it's gonna be worse than if they didn't have it in the first place.

 And so better to impose some order on [00:36:00] that space, on that commons to make sure that it serves everyone's interests in balance, in moderation, so that everyone can have a piece of it. I'm sure you guys, listeners of the podcast know Jane Jacobs and her work about, in, in New York City from the, the '60s.

She talked about the sidewalk ballet, and for her, the disorganized chaos was beautiful and part of the point. And, I can't speak to what the number or quantity of demands were on the sidewalk then, but think they've grown quite a bit since, and robots are the next stage of that.

And so my argument is that ballet, however beautiful it may have been, needs a choreographer now, right? Someone who's able to say, "There is a lot of beauty here and a lot that we want to retain, but we have to plan what we're doing of just a little bit more." 

Stephanie Rouse: Yeah, I think it goes back to your comment earlier about a department of sidewalks or at least a coordinated committee, what we're doing here in Lincoln, realizing that there's a lot of different things that go on with sidewalks and we're not communicating well amongst departments that all touch it [00:37:00] in some way.

Michael Pollack: Yeah. 

Stephanie Rouse: We've developed a committee that's starting to meet regularly to discuss sidewalks and how- That's great ... we're gonna better coordinate 

Michael Pollack: that. That's terrific. And I think the Department of Sidewalks is my more extreme or maybe radical version of the idea. But if more and more cities just took the approach that you guys are just describing, that would be a huge step forward.

Jennifer Hiatt: We do have to say Stephanie is gonna be late to that meeting because of this recording but that's okay. 

Stephanie Rouse: I think it's equally important. 

Jennifer Hiatt: Agreed. Agreed. So with all of these activities that are happening on the sidewalk and in daily life, there's one thing that pretty much overshadows everything, and that is constitutional questions.

 I did not enjoy my First Amendment class in law school, I'll just say, but can you give us a brief overview of some of the constitutional questions that surround sidewalks? It's not just the First Amendment. 

Michael Pollack: That's right. Yeah. So in the book I focus on... You're right, there are a lot of them.

I focus on two in the book. The First Amendment having to do with public speech, so protest signature gathering, picketing, public art, [00:38:00] things like that. And the Fourth Amendment, which has to do with police investigations and our rights of privacy in public space. And both of them are not only obviously important for our daily lives and for the protection of our civil liberties, but a lot of law of the First Amendment and of the Fourth Amendment is actually sidewalk law.

There, it's cases that arose out of sidewalk encounters with the police, sidewalk searches by the police, or in the First Amendment context, a lot of sidewalk speech. Both the history of these civil liberties is in large part a sidewalk history but the future of them is also a sidewalk question.

So when it comes to the First Amendment, sidewalks are what generally are what are called public forums. So a public forum is something that the courts identify as that has forever been considered a place where speech occurs, as distinct from a private forum or what we call a semi-public forum, somewhere in the middle.

And so in a public forum, a person's rights to speak are at their [00:39:00] highest. So the sidewalks are considered to be a public forum. In fact in some folks' accounts, they are the quintessential public forum. them and the town square are the, the original public forum. And so that is why we have the right to do signature gathering there.

We have the right to do street corner preaching or sermonizing. We have the right to protest and picket and speak, all of that. And so I think that's probably intuitive for a lot of folks. They look around their lives, they see that. What I think is important to underscore though is that even in a public forum, the government can restrict some things.

So the government is still allowed to engage in what's called content neutral and viewpoint neutral regulation. So the government can't take a side on a particular issue, right? It can't say, "You're only allowed to speak about oil drilling if you're in favor of it as opposed to if you're not in favor of it."

 It also can't say, what I just described is the viewpoint neutrality. From a content neutrality perspective, the government also can't say, "You're only allowed to talk about oil [00:40:00] drilling pro or con, but you can't talk about anything else," right? So it has to be neutral on the content and on the viewpoint of the message, but the government can impose reasonable regulations of the time, place, and manner of the speech.

That's why my right to speak freely on the sidewalk does not include the right to have the world's most loud bullhorn at 4:00 in the morning, right? The government can prohibit me from doing that. And so that's why a lot of times the protest does require a permit. And that permit will have rules about what you can and can't use to broadcast your message, for example, or what volume or what time So all of that is a given in First Amendment law.

Where things get most difficult is where those restrictions, those time, place, and manner restrictions, might manifest to box out nearly all speech. So there's a case in the 1980s that the court decided upholding a city's regulation that effectively banned protesting [00:41:00] in a sidewalk in a residential neighborhood.

And the logic there was that the government had a rational interest in preserving the sort of peace and quiet of a residential neighborhood, and in that community, in that city, there were ample alternatives to engage in that speech in more commercial parts of the town, right? And so whether there are sufficient alternatives, alternative channels for the speech, that's also part of the analysis.

But what about a town, and there are many of them, where most of the town is residential, right? It begs the question if there are no alternatives for speaking in that town, could that town make the same prohibition or not? Would it be enough if the next town over had more commercial space where a person could speak more freely?

 Those questions haven't really been answered quite so much in part 'cause those laws, those, challenges haven't occurred. But that's one area that raises those kinds of questions. Another having to do with the manner of speech I've been talking about [00:42:00] volume and oral speech, but in many cities and towns, you're not allowed to deface the sidewalk which would include putting down like a, a decal or a sticker or an ad-- like a permanent advertisement on the sidewalk.

 In New York City, you're not even allowed to project a lit advertisement onto the sidewalk which has always struck me as odd because it's not actually defacing the sidewalk. It's just a light being projected onto the sidewalk. You're also in a lot of places not allowed to chalk the sidewalk. That's considered defacement even though, of course, a hose or the rain will make that chalk go away.

 It's ironic. There's a product called sidewalk chalk, and yet you are generally not allowed to use it on the sidewalk. there have been First Amendment challenges to those anti-chalking laws, and they have been upheld on the basis of this is just prohibiting one manner of speaking, and so it's therefore within the government's power to do.

So if there is a sort of core takeaway here, it's the following two things. One, yes, we are free to speak on the sidewalk. They are the [00:43:00] quintessential public forum, but that is not an unlimited thing, and people need to understand that the government can impose limits on how and when and where they can speak.

And that leads to the second point, which is people need to think a lot about what those limits should be. And if it's within the government's power to do, that means it's within our power as voters to do it or not do it, right? Just because the Constitution allows the government to prohibit chalking doesn't mean that it should or that a given community thinks it ought to.

 And so the fact that these constitutional rights are really important but not as ironclad as folks might think actually is an opportunity for us to participate in our government decision-making about what the scope of those rights is gonna be in that community, and to stand up for and argue for, frankly, using the public speech channels that are available to us on the sidewalk to argue for what those rights ought to look like.

Stephanie Rouse: So one specific case law that you discuss in the book led to the term [00:44:00] Grace sidewalks. Mm-hmm. What are they and how do they differ from a normal sidewalk? 

Michael Pollack: So a Grace sidewalk is a normal sidewalk. So the case United States versus Grace actually involved the sidewalk in front of the Supreme Court building itself in Washington, DC.

At the time, Congress had enacted a law that was a blanket prohibition on protesting and picketing activity on that sidewalk in front of the Supreme Court. And a woman named Mary Grace was arrested and charged with violating that federal law, and she challenged it, and, the irony, she's arguing, her lawyer's arguing this case in that very building.

 It rules in her favor. The court strikes down this law and says that the sidewalk in front of the Supreme Court isn't just any other sidewalk and this is the case that holds that sidewalks are public forums, and a blanket ban on speech is not permissible in a public forum. Again, the government could prohibit methods of speech, times, volumes, and whatnot, but it can't blanket prohibit it and it can't, for example, say you're only allowed to speak in support of the court there but not criticize its [00:45:00] decisions.

 Okay, so that's the law, that's the law of sidewalks. It does, though, raise the question: Is every sidewalk the same? What about a sidewalk in a private shopping center, right? Those are not Grace sidewalks. That's private property, and so the private property owner can prohibit all of the speech they feel because it's private.

The government has no role in that. What about a sidewalk on government property, so it's public, but that is a different kind of sidewalk? So the classic example of this is, there's a post office and a parking lot, and there's a little sidewalk pathway connecting the parking lot to the post office.

 That is government property. It is public space. Is it the same kind of sidewalk? The court has indicated the answer is no, that there it's not the quintessential public forum, it's something less, and therefore, the government can impose greater restrictions on speech activity in the interest of- Having a smooth pathway for post office patrons in and out of the post office.

this sort of is [00:46:00] a sidewalk everywhere? And the answer is generally, but not always. And this is, what lawyers either love or hate about the law is everything is a, "Eh, it kinda depends. There are a couple of exceptions." And there were a series of th- these post office cases in the courts of appeals and the Supreme Court, and there the gist seems to be that, yeah, the postal service can prohibit and restrict more speech there than they would be able to if it was a regular old sidewalk by which that they mean sort of the space between the, the street and the building.

 But once you're parking lot and building or the sort of T-intersection in a sidewalk, from the sidewalk up a path to the front door of a government building, that might allow for different restrictions or greater restrictions on speech. 

Jennifer Hiatt: I will say that the book is very accessible in readership.

Good. That second half, if you wonder what it's like in a lawyer's brain, is a pretty good example as you walk through, "But what about this?" And then, "What about that?" And then, " What if we changed that?" So if anybody was ever curious, they've got a great example. 

Michael Pollack: [00:47:00] And I'm glad it's successful. I wanna be clear, the book is written for a general audience, so it is not just for lawyers or law students.

It's not just for government officials. And so I, hope that regular people, v- residents, voters pick it up, read it, and get inspired about what they might want to see in their communities and just to better understand how this space beneath our feet is managed and regulated and what we could do better about it.

Jennifer Hiatt: Yeah. And as this is Booked on Planning, always our last question, what books would you recommend we check out? 

Michael Pollack: So I teach a seminar at Cardozo called Critical Perspectives on Land Use, and so it's a lot of law review articles and book excerpts about transportation policy, land use policy, and the law that undergirds all of it, and how it has and could be problematic from a socioeconomic perspective, racial perspective, religious perspective, and again, what we might do better.

I have a whole syllabus of things to suggest here. But some of my favorites include Henry Grabar's book, Pave Paradise, which is a terrific exploration [00:48:00] about parking lots and parking minimums. I think his book is phenomenal. It's something that inspired my approach to this book.

Janette Sadik-Khan and Seth Solomonow's book, Street Fight is a fantastic book about walkability. Jeff Speck's book, Walkable City, is another book on that line as well. And then there's three books that I've been working with my students on about specifically race and transportation planning, and so that's Deborah Archer's book, Dividing Lines about transportation infrastructure and racial inequality.

Jessica Trounstine's book, Segregation by Design, which is about zoning policy and race and class inequities. And Veronica Davis' book, Inclusive Transportation: A Manifesto for Repairing Divided Communities which is written by a transportation planner and land use planner herself with a lot of great sort of concrete suggestions for planners and scholars and students alike 

Stephanie Rouse: All really great books.

We've covered a couple of these interviewing many of these authors. Good ... a, a few of those have been on my own personal reading list that I just haven't gotten to. Very hard when you're trying [00:49:00] to read two books a month for this show. Absolutely, 

Michael Pollack: yes. 

Stephanie Rouse: Michael, thank you so much for joining us on Booked On Planning to talk about your book, Sidewalk Nation: The Life and Law of America's Most Overlooked Resource.

Michael Pollack: Thank you so much, guys. 

Awesome

Jennifer Hiatt: We hope you enjoyed this conversation with author Michael Pollak on his book Sidewalk Nation: The Life and Law of America's Most Overlooked Resource. You can get your own copy through the publisher at Harvard University Press, by supporting your local bookstore, or supporting the show through our page at bookshop.org/shop/booktownplanning.

Remember to subscribe to the show wherever you listen to podcasts, and please rate, review, and share the show. Thank you for listening, and we'll talk to you next time on Book Town Planning [00:50:00]