Episode 176: Sidewalk Nation

Doug Gordon: Hey everybody, just a quick note. This is the general release episode. If you’re a Patreon supporter, you’re gonna get an extended version of this episode with more content, a longer interview with our guest, Michael Pollack. Just go to Patreon.com/thewaroncarspod, sign up for $3 a month, and you can hear that full extended episode, plus all of our exclusive bonus content. And that episode is ad-free. Again, it’s Patreon.com/thewaroncarspod. Thanks.

Doug: So Sarah, there’s a question everybody always asks people who are into cycling. How many bikes do you have?

Sarah Goodyear: Hmm. How many bikes do I personally have?

Doug: Your family. How many are in your household?

Sarah: Okay, this is gonna take a second. I think we have eight.

Doug: Eight between three of you?

Sarah: Yeah.

Doug: How many of those are electric?

Sarah: Zero.

Doug: Zero? So you have not joined the e-bike revolution that’s happening all around us?

Sarah: No, I haven’t. But I’m gonna say that I have been sorely tempted. I’ve been thinking about it.

Doug: Well, what if I told you you could save $100 off of an e-bike purchase of $800 or more at Upway with the code TWOC100?

Sarah: Why that might encourage me to buy a used refurbished e-bike from Upway.co.

Doug: Wow, it’s almost like you know we’re doing an ad, Sarah.

Sarah: It’s also completely sincere.

Doug: No, you really should. I mean, in all seriousness, I’ve been to the warehouse in Brooklyn, and they have all manner of e-bikes, like anything you can imagine, every brand you can imagine, all the big brands. And they’re all in really great shape, like new, refurbished, inspected, and tuned up by the mechanics there. They really do a great job. If you are in the market for an e-bike and you want to join this e-bike revolution, I have to admit in my household, we have, I think, ten bicycles between the four of us, and three of those are electric.

Sarah: I think I’ve gotta get on this bandwagon.

Doug: All right. So go to Upway.co—we’ll put a link in the show notes. Use code TWOC100, and you can save $100 off any e-bike purchase of $800 or more.

Michael Pollack: When roads have potholes or cracks and whatnot, drivers are rightly frustrated by that. And cities sometimes are prompt, sometimes less prompt in fixing it. But we all recognize that that is a really important thing that needs addressing and addressing specifically by the city, not by any particular private property owner. But when it comes to the same kinds of defects and obstacles in the sidewalk, A) we tend to look at it as a private responsibility; and B) we tend to make it a much lower priority.

Doug: This is The War on Cars. I’m Doug Gordon. Sarah Goodyear is off this week. So here’s a question I actually haven’t taken that much time to consider, and I bet many of you haven’t either. What is a sidewalk? Kind of a weird question, I know, given how central sidewalks are to our experience of cities, small towns, and everything in between. Now on its surface, of course, a sidewalk is space for pedestrians to walk next to a street or road. Literally a “side walk.”

Doug: But it’s so much more than that. In many places, although not everywhere, sidewalks are a vital part of the transportation system, offering people on foot or in wheelchairs routes to get from point A to point B. But as much as sidewalks are places for movement, they are also places for people to linger, to socialize, to protest, to advertise and sell goods, to wait on line to get into a club or buy something from that place that’s gone viral on TikTok. Sidewalks are places to drop off mail, to dine outdoors, or when it comes to our more vulnerable and unhoused neighbors, to sleep or beg for assistance. Then there are things like garbage cans, utility poles, bus stops, subway entrances, bike parking. All of them are placed most of the time on sidewalks. That is a lot to ask of these narrow strips of concrete or whatever material they’re made of that exist in a gray area between public space and private property.

Doug: Complicating it all is that unlike roads or public spaces such as parks, sidewalks are subject to a hodgepodge of laws, and they’re governed by an alphabet soup of agencies that can vary from city to city, and sometimes from neighborhood to neighborhood. That’s all assuming sidewalks exist where they’re needed, are used where they exist, and are maintained to a level where they can be accessible to everyone.

Doug: My guest for this episode has a new book outlining what he calls America’s most overlooked resource, the sidewalk. We’ll get to that in a moment. But first, The War on Cars is on Patreon at Patreon.com/thewaroncarspod. If you like what we do, you can sign up for just $3 a month. Again, that’s Patreon.com/thewaroncarspod.

Doug: My guest for this episode is Michael Pollack. Michael is a professor of law and the associate dean for faculty development at the Benjamin N. Cardozo School of Law here in New York, where he teaches and conducts research primarily in areas of property law, state and local government law, land use, and administrative law to explore how local institutional decision-making and the public and private regulation of space affect people’s lives, wallets, health, satisfaction and overall welfare. Sort of the legal branch of the war on cars. He is the author of a fascinating new book, Sidewalk Nation: The Life and Law of America’s Most Overlooked Resource, which is out now from Harvard Press. Michael Pollack, welcome to The War on Cars.

Michael Pollack: Thank you so much, Doug.

Doug: I love a book that causes me to look at the world in a different way. And I finished this book, and on my walks since, on my walk up here to the studio, I really felt like I was Neo seeing the Matrix, seeing the width of the sidewalk, all the things on the sidewalk, all the people on the sidewalk doing different things. How did you zero in on the sidewalk as a place or a thing worthy of examination at the legal level?

Michael Pollack: Well, first of all, I’m really glad to hear that that’s the effect it’s had. I hope that reading the book makes folks take a new look at the kind of thing that they take for granted every day, which is this space under their feet.

Michael Pollack: So in terms of how I got to this topic, as you were saying before in that very kind introduction, a lot of what I study is how people interact with public space and how governments regulate public space. And the sidewalk itself sort of jumped out to me as an important area of study during the height of the pandemic, now almost six years ago, when, like a lot of folks, I was taking my daily mental health walks around my neighborhood, and I saw just how many other people were doing the exact same thing. And how many other uses of the space were being made, from outdoor dining to outdoor commerce and so much else. Of course, that summer, a lot of outdoor protest as well. So realizing just how much was really taking place there got me thinking about how little we as scholars understand and have talked about this space. And that, in turn, got me thinking about how little we as regular people every day spend our time talking about and thinking about this space.

Doug: Let’s start from sort of the overhead view. You study and teach property law. Simple question, not a simple answer: How do the laws surrounding sidewalks differ from other common understandings of property law?

Michael Pollack: Yeah, so this is the part that really got me exercised, upset, which is that for the most part in property law, private property is private property, right? Your home, your business. What that entails is you have what we call the “bundle of rights.” The bundle of sticks is the metaphor that’s often used, which includes the right to control what happens in that space, to control who gets to be in that space, to sell or not sell or leave to your heirs that space. And on the other hand, public property is public space owned by the government, regulated by the government, cared for by the government for the benefit of the public at large. And ordinarily, the boundaries between these two—or at least the categories—are robust, pretty rigid.

Michael Pollack: Sidewalks fall into this liminal space or this middle area where in some municipalities they are considered private property. So the owner of a house, of a business, their property line will extend to the curb, or in some cases even past the curb into the roadbed. In those areas, the sidewalk sits on private property, but the public has what’s called an “easement” or a legal right of access to that space. And that’s why we can walk and do all the things that we do on those sidewalks. In other jurisdictions, the sidewalk is public property in the sense that the private property line ends at the edge of the building or a little bit beyond that. And so the sidewalk is owned by the public, owned by the government.

Michael Pollack: You might think that oh, there must be different rules. It must make sense that in those jurisdictions where the sidewalk is public property, the government takes care of it. And in the jurisdictions where it’s private property, the private property owner takes care of it. That’s both not true descriptively and it’s not true in the law.

Michael Pollack: So the way that the law would or should generally resolve that question is that in any other context where there is an easement over private property, it is the person with the easement, the person with that right of access, who has the responsibility to take care of that space. So in this case, that would be us, the general public. In other words, as a matter of property law, it shouldn’t matter whether the sidewalk is on private property or public property. It should be a public responsibility. And yet, in both categories of jurisdictions, it is generally not public responsibility; it is private responsibility. It is individual property owners who have to maintain and care for and shovel and even sometimes install this sidewalk.

Doug: So the classic example as a New Yorker, but this is true in other cities, is snow removal.

Michael Pollack: Mm-hmm.

Doug: It is a public right-of-way. We plow the roads, tax dollars, the sanitation department all goes towards plowing roads for cars. Even bike lanes now get plowed by the Department of Sanitation or the Department of Transportation or even the Parks Department. But sidewalks are the responsibility of the adjacent property owner, and there are all kinds of rules about when it has to be cleared, when the last snowflake falls and how much you might be fined if you don’t.

Michael Pollack: That’s exactly right. And it’s not—it’s easy to think of the snow as the most salient of these responsibilities. And I think on a day-to-day or year-to-year basis, that’s probably the case for most property owners. But the more costly and frankly intense responsibility is not just clearing the snow, but fixing and maintaining the sidewalk. So that concrete cracks in heat and thaw cycles. It cracks from overuse. It cracks because big tree roots throw up the pavers. The cost to repair that sidewalk also often falls on that adjacent property owner, and that can be thousands and thousands of dollars. And the property owner doesn’t necessarily know when that bill is going to show up, when the city will say we’ve now assessed that the sidewalk quality in front of your property is bad enough, and we’re forcing you to now pay to have it repaired.

Doug: Right. They might not know the threshold that triggers—like, is a crack in the sidewalk something I have to fix right now? Or is it really when the tree roots lift up the whole thing, and then suddenly we’re talking about a different level of repair?

Michael Pollack: Exactly. Now every jurisdiction is a little bit different. In some, the city government does take some responsibility, does spend some taxpayer dollars to address some of the worst problems, but in others they don’t. The point is it can be very unpredictable. And for property owners, that lack of predictability can be really hard in terms of budgeting their household finances.

Doug: In the book, you argue for what you call a “Department of Sidewalks.” So I mentioned that alphabet soup, the ambiguous nature of who or what agency is responsible for certain things that are under the sidewalk, on the sidewalk, et cetera. You argue for a Department of Sidewalks. How would that differ from the way that we see sidewalks now, which in New York and in other cities often falls to some combination of the Department of Transportation, the Department of Environmental Protection if we’re talking about sewers, or a Parks Department?

Michael Pollack: Well, right away you’ve listed three departments, and I’d like to make—have that just be one.

Doug: I did that on purpose.

Michael Pollack: There’s also the private property owners are essentially a fourth department or a fourth caretaker, fourth responsible party, or fourth interested party for that matter. And there’s actually often a lot more agencies than those—police, fire, business affairs, health, homeless services. I could keep going, right? So there are a lot of agencies and private property owners that not only share responsibility, but that overlap is also imperfect. And so there are gaps in that—in all of that oversight.

Michael Pollack: What I would like to see happen with this Department of Sidewalks idea is to unify all of this regulation and all this responsibility into one set of decision makers and one set of accountability. So have an agency that is responsible for the entire space, so there won’t be any gaps, and avoid all that overlap and that redundancy and often that conflict and confusion. So inside of city government, I’d like to see more streamlining. And I’d also like to put the private property owners out of the sidewalk business and move those responsibilities where they belong, which is the public realm and the public government.

Doug: Let’s talk about some examples of places that have done that, because you mentioned the extremely high cost of sidewalk maintenance to the private property owner. You travel sort of up the Hudson from here to two cities that have different ways of looking at sidewalks.

Michael Pollack: Yes, in Hudson, New York, and in Ithaca, New York, as well as in Denver, Colorado, which I write about at length in the book, they have recently pioneered new ways of funding the caretaking of the sidewalks. So they have, by and large, put private property owners out of the sidewalk business and moved this responsibility into the city government.

Michael Pollack: Where does the money come from to fund it? Yes, of course, everything costs money. And what they’ve done is they’ve, in slightly different structures, they’ve basically imposed assessments on property owners that are paid on a regular basis, and that money goes into a specific pot for funding sidewalk maintenance and the expansion of sidewalk networks. What I like about this idea is it makes the financial responsibility both more regular and more spread. So it recognizes that the sidewalks as a network are a public benefit for everybody, not just for a particular property owner. And so it makes the responsibility for caring for that resource for everybody, everybody’s responsibility. And it also makes that more regular because it becomes this predictable part of your budget, that every month, every quarter, every year, however often it’s assessed, you will pay this amount.

Michael Pollack: And I guess the last thing I’ll add is it’s a smaller amount, right? The whole idea behind spreading the cost across an entire city is that no one individual is facing this multi-thousand-dollar bill, but rather in some cities it’s as little as $8, $10, depending on the frontage or the size or the use of the lot. So this small fee spread across an entire populace can more effectively and efficiently fund this work while appropriately putting it on the public shoulders and sort of recognizing it as the public benefit that it is.

Doug: And then there are the economies of scale.

Michael Pollack: Exactly.

Doug: So a city can repair miles and miles of sidewalk at once, lowering the cost, whereas I, an individual property owner repairing 20 feet of sidewalk, have to call an individual contractor, maybe through the city itself, and that can be gigantically expensive.

Michael Pollack: That’s exactly right. You know, I also argue in the book that we should do the same when it comes to clearing the snow off of the sidewalks. And I make the same argument about the economies of scale there, right? For any individual property owner clearing their 10, 20 feet of space, a shovel is all they’re really going to invest in. Maybe they’ll hire someone to do it. But if the city were going to clear an entire block’s worth of sidewalk, they would be able to invest in machinery that can do that more quickly and at greater scale for lower cost. And it would also enable folks who are less well-resourced, who are disabled, elderly, and so on, to be able to effectively get the access that they need without having to sort of create it for themselves.

Doug: And then, of course, it might create standards for sidewalk accessibility, because right now, as it stands, if you are of limited mobility, in a wheelchair, have any sort of issue walking, you get to one property and the sidewalk is pristine and new. You get to the edge of that property and oh no, it’s been lifted up by just a half inch, which might as well be an entire wall if you’re in a wheelchair.

Michael Pollack: That’s exactly right. And one of the things that I think is so important is sidewalks have to be thought of as a network, that it’s something that only works if it is coherent, consistent, and contiguous. And so where there is any one bit of it that is inaccessible, either because of snow or ice, or because the quality is so poor, or because it just doesn’t exist, it is as if the entire network doesn’t exist. The entire network fails at that point. So I think it’s really important to see the sidewalks as a coherent and complete network that only works if it is consistent and contiguous across a city, or at least across a neighborhood.

Michael Pollack: I’ve spoken to so many folks in the course of researching the book who talk about how what might seem to be a fairly minor inconvenience in terms of getting from point A to point B is for them not just an inconvenience, it is the difference between being able to do it or not, between being able to get to their job, to their friends, to run errands, or not at all. And so in this way, a safe and consistent sidewalk network is really essential to people being able to fully participate in their cities, in their local economies, and in their friendship networks, and just being able to get the most out of life. This particular resource is at the heart of that.

Doug: Yeah, I’m thinking about that in the context of an aging population.

Michael Pollack: Exactly.

Doug: That if you do not have an accessible sidewalk, you are, at a certain point when you age out of driving, trapped at home.

Michael Pollack: That’s exactly right. And folks with mobility limitations, whether permanent or temporary, face the same kinds of hurdles. Even, you know, people with a stroller, or here in New York City, I think a lot of folks have what we used to call “granny carts,” you know, the large grocery wagons that you would collapse to bring into your apartment. Where there’s sidewalk that is incomplete, inaccessible, bumpy, rough, you really see the difference in terms of how much more difficult it can be to actually complete this task. You know, when roads have potholes or cracks and whatnot, drivers are rightly frustrated by that. And cities sometimes are prompt, sometimes less prompt in fixing it, but we all recognize that that is a really important thing that needs addressing, and addressing specifically by the city, not by any particular private property owner.

Michael Pollack: But when it comes to the same kinds of defects and obstacles in the sidewalk, A) we tend to look at it as a private responsibility; and B) we tend to make it a much lower priority.

Doug: You go to Texas. It’s one of the places you visit, and you talk about Houston, which looms large, I think, in urbanist circles as famously not having the kind of zoning that other places have, a really—it’s not really true, but no zoning at all. So Texas famously doesn’t love regulation, doesn’t love big government telling you what to do with your property. Talk about some of the challenges, specifically in Houston.

Michael Pollack: When I teach property law and land use law, we always hold out Houston as the example of the city that doesn’t have zoning. Now as you said, that’s not quite right. They don’t have zoning, they have land use regulation. So there are a lot of regulations on how a person can use their land. Chief among them that I am critical of in the book is parking minimums, and we can talk more about that. But the way in which Houston lacks zoning is to say that there are not separate residential and commercial districts by law. There are, in fact, separate residential and commercial neighborhoods, but that’s either because of market forces or private covenants and agreements. It’s just not imposed by the city by law.

Michael Pollack: On the one hand, that potential for more mixed-use neighborhoods should actually, or could actually be the kind of thing that a lot of urbanists love—more walkability, more mixed use, more density, the ability to have within a very small radius from your home, coffee shops, restaurants, bars, stores, offices even. And there are parts of Houston that have all of that, and it is ripe for the kind of dense urbanism that I think a lot of advocates are happy about or excited about.

Michael Pollack: At the same time, though, there are a lot of neighborhoods in Houston where these uses, even though the law does not require them to be separated, they are heavily separated. And they’re not just separated across, you know, one neighborhood to the next, but they’re pushed far away from each other by roads and parking lots, that all of this space, all this concrete that’s given over to the movement of cars and the storage of cars puts a lot of distance between individuals and their destinations. And it also puts a lot of distance between destinations. So even though it’s the kind of city, or at least it has the legal framework to make it the kind of city where folks could park once and walk to a lot of different errands or destinations, it doesn’t quite work that way in practice too often because all of the parking separates the sidewalk from the strip mall or from the restaurant or from the store, and the wide roads separate one side from the other.

Michael Pollack: So I do think that cities are different, and I don’t have a one-size-fits-all prescription here. I don’t know, I thought it was a little bit ironic as I was researching the book that I expected to come out here and sort of become a bit of a sidewalk evangelist, and yet I write in the book I’m not so sure that Houston needs all the sidewalks that they have or that they insist on having because if no one’s gonna use them, it’s not really worth having them. Now I would love to see them exist, and I’d love to see people use them, but sidewalks are not sufficient to make themselves be used. They are necessary to have them be used to have a walkable community. But more than just the sidewalks is needed.

Doug: As you write in the book, “Houston sidewalks aren’t the weak link in a city waiting to use them. A city can have pristine sidewalks on every mile of road, and indeed some of the new developments that they’re building there are surrounded by sidewalks. But if there’s nothing worth walking to or nothing to do within walking distance, nobody will use them.” And apologies to our listeners in Houston, because you say “All of this parking, and it really comes down to these vast expanses of parking, means that there aren’t really communities in Houston. There are shopping centers with parking lots, and there are residences with garages.” Now there are some nice neighborhoods in Houston where you can walk.

Michael Pollack: Absolutely.

Doug: But generally, that’s kind of how Houston is perceived, and other cities like it.

Michael Pollack: You were saying before how Texas has this sort of we don’t want big government in our business. It’s interesting that the most salient part of government regulation of land use and transportation in Texas is the law that requires you to have a very large parking lot. These parking minimums, which I should say the city is revisiting in a number of neighborhoods, particularly in downtown Houston, and that’s terrific. A lot of cities have parking minimums, a lot of cities are revisiting them. This is—I’m sure listeners of your podcast have heard you talk about Donald Shoup and his work on the high cost of free parking. A lot of cities are revisiting these laws, and that’s really, really essential to make land use more usable for a lot of different purposes. Obviously, it serves my set of interests in terms of sidewalk use and walkability, but it also advances interests of affordable housing, and it advances the business community by enabling more space to be used for retail and for business and for customers rather than just for parking.

Doug: And you said earlier, maybe there are some places that just don’t need sidewalks. And the example you cite in Houston comes from the idea of climate change and the fact that Houston is so susceptible to hurricanes and flooding. And you write that if so few people are gonna use certain sidewalks in certain places, maybe it just would be better for that to be green infrastructure that can absorb some of that water.

Michael Pollack: Yeah, let’s remember, sidewalks are often an impervious surface. Now, there are—I write about in the book—newer technologies that can make sidewalks more absorbent, can run—can direct the rainwater toward trees and other bioswales and things like that. All of that’s great. It’s also very expensive. And so a lot of cities that are budget conscious are gonna install a very simple concrete sidewalk. That’s a more impervious surface, and when you’re facing flooding and heavy rainstorms, it’s worth asking: Is it worth having that again, if no one’s going to be using it.

Michael Pollack: The other thing I’ll add too is that in Houston, the law right now is that where there is no sidewalk, the trigger for installing it is when that parcel is redeveloped. When the property owner develops that parcel, they then have to install that sidewalk. So there’s a cost, not just in terms of the environmental cost, but there’s a financial cost to installing a sidewalk that again falls on a private property owner. And if no one’s gonna be using it, and if it’s just an isolated island of sidewalk with nothing in front of or behind it, it’s not really worth the money. Now Houston’s government has revisited this so-called sidewalk to nowhere problem, and has been waiving or limiting this requirement or the imposition of this requirement, recognizing this problem. What I would say is, to my point earlier about sidewalks as a network, they ought to be installed altogether on one block at once or not at all. They’re only usable if they’re consistent and connect the whole street. And if they’re not gonna be usable, it’s not really worth the expense or the environmental cost.

Doug: So let’s move to New Orleans, because a lot of these issues come together there—climate change, racial inequities. Now we tend to think of New Orleans outside of the French Quarter as covered with trees, you know, these majestic oak trees and the tree canopy on St. Charles as just beautiful and sort of what makes it tolerable to live there in the summer or to visit during hot times of the year. Sort of as you describe about sidewalks, trees are not in and of themselves an unalloyed good. They bring with them all sorts of problems that affect sidewalk quality as much as they filter out pollution and absorb noise and make the street cooler, they absorb water, all sorts of things. They do some pretty terrible things to the sidewalks and the ground in New Orleans.

Michael Pollack: Yeah, trees are absolutely a bit of a double-edged sword everywhere, but in New Orleans in particular. Everything you just said about what they can offer is true and fantastic. Those tree roots throw up the concrete pavers on the sidewalk in some places dramatically, not just a half inch, as you were saying before, but many inches. In some cases, I saw pavers that were fully at a greater than 45-degree angle.

Doug: I’ve walked around New Orleans and easily a foot, it’s like a stair.

Michael Pollack: Absolutely. Absolutely. And so, you know, for folks with mobility limitations, that’s dangerous. It’s potentially, as you were saying before, actually inaccessible. Of course, I’m not suggesting rip out all the trees, but it’s another facet of okay, how do we keep the trees but manage this resource, manage the sidewalks in a way to cope with them, right? And that means making repairs. It means being thoughtful, especially where you’re gonna be planting new trees, about where you’re planting them, how you’re planting them. Should the sidewalk be elevated higher above the rootbed? Some cities are starting to do that to prevent this exact kind of problem.

Michael Pollack: Now there are also parts of New Orleans that don’t have very much tree cover. These tend to be predominantly poorer neighborhoods, mostly lived in by people of color. And in these neighborhoods, they have the so-called “benefit” of not having their sidewalks disrupted by the tree roots, but they have the cost of all of the missing benefits that you just articulated. And the sidewalks are still bad. They’re problematic for other reasons. They’re cracked because they’ve been baking in the sun. They’re cracked because again, it’s a poor neighborhood and the property owners who live near there can’t afford to take care of it, again, because the city has made it their responsibility to do so. And so what I explain in the book is that sometimes even within a given city, the causes of sidewalk disparities or of sidewalk dysfunction are different. And so it’s important to be sensitive to okay, why is this stretch of sidewalk in rough shape? And not to assume a sort of one-size-fits-all problem and one-size-fits-all solution.

Doug: And then the burden placed on those sidewalks is different in those communities, because in the wealthy, white neighborhoods where people have the ability to walk on cooler streets, shaded streets, even if they do have to contend with some sidewalk segments that are, you know, uprooted by trees, those white neighborhoods, people have access to a car.

Michael Pollack: Exactly.

Doug: People in the poor neighborhoods, the Black neighborhoods, where there’s no tree cover and they’re exposed to the elements and it’s hot, three times as many Black residents of New Orleans lack access to a car as white residents, which is something you see in a lot of cities across this country. So there’s another inequity there, and all of this burden falls on the sidewalk in different ways.

Michael Pollack: Adding to that, the availability of public transportation is also very disparate based on wealth and race in cities throughout the country. So in New Orleans, a lot of—I mean, it’s not a great city for public transportation in general, but it’s much better in the wealthier and whiter neighborhoods, where as you were just saying, it is theoretically less necessary, because more people have access to cars and because the sidewalks are more comfortable to walk on. And so you compound this problem in the poorer neighborhoods, the neighborhoods predominantly of color, where you have poor quality sidewalk, lack of access to vehicles, more reliance on public transportation and less access to it. And so that storm of inequities really calls into sharp relief, how do we create city law? How do we create city governance? And how do we create city agencies and amenities like public transportation that can better serve everyone where they are, find them where they are and serve their needs rather than, as I was saying before, a sort of one-size-fits-all assumption.

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Doug: Let’s talk about historic preservation, obviously a factor in New Orleans and the French Quarter. That itself imposes a real burden in many ways on property owners, because sidewalks have to meet a certain standard, they have to have certain materials that match the historic integrity of the neighborhood. How does that play out in the French Quarter?

Michael Pollack: So historic preservation is something that property owners and lawyers, judges, some advocates, some policymakers too, have very mixed feelings about, because as you were saying, it’s an expensive undertaking. In fact, some of the earlier litigation in this country about what’s called the Takings Clause of the Fifth Amendment to the Constitution are challenges to historic preservation rules, because from the perspective of the property owner, this is an uncompensated burden that’s been handed to them.

Doug: Yeah, can you explain the Takings Clause? Because I found this fascinating.

Michael Pollack: Sure. So the Takings Clause literally says that “Nor shall private property be taken for public use without just compensation.” You might think that just refers to what we call the practice of “eminent domain,” where the government becomes the owner of your property because they want to clear the land to build a road or a stadium or a park. And so those sorts of takings are obviously takings, and the government has to compensate the property owner for that.

Michael Pollack: But the government does a lot of other things to people’s private property short of seizing it. Namely, they regulate it. A lot of those regulations can devalue the property or impose costs on the property owner. Historic preservation is a great example of this. These sorts of regulations are sometimes considered takings, which means they sometimes are considered the kind of thing the government has to pay compensation for, but sometimes they’re not.

Michael Pollack: And so one of the main cases called Penn Central was a challenge to New York City’s landmark law, historic preservation law. Property owners said, you’re gonna tell us we can’t change the parcel in all of these ways, we can’t develop it in all of these ways. Fine, but you have to pay us for the loss of value. And the Supreme Court said, no, not a taking. The government doesn’t owe you anything, because this is simply part of the way that property can be regulated. And so there’s a very mushy test of sort of when a government regulation goes too far, imposes too much of a cost on property owners, only then is it considered a taking that demands compensation.

Michael Pollack: So historic preservation is controversial for a lot of those reasons. And I guess I’m adding another one, which is to say it can sort of get in the way of accessible and well-maintained sidewalks by A) increasing the cost to the property owner. As you were saying before, the materials might be special and might therefore cost a lot more. I talk in the book about Denver, which has these famous flagstone sidewalks. The quarry that it comes from is gonna be depleted someday, right? And so it’s not just a matter of cost, but you can’t actually get that resource anymore. So there are a lot of obstacles that these historic preservation laws impose.

Michael Pollack: But the other is just that in the French Quarter, for example, that narrow sidewalk is itself part of the landmark. A lot of those businesses could make more use of a wider sidewalk for more jazz, for more dining, for more drinking, and so on. But they can’t expand it. It’s not allowed to be expanded because it is part of the landmark. And so what I talk about a little bit in the book is how what might seem in one respect quaint, historic, cute, charming, can from the other perspective be viewed as inaccessible, crowded, not up to the modern demands that are being placed on that space. I’m not suggesting we should Disnify every neighborhood and have everything be, you know, brand new, wide, big sidewalks that interfere with the charm of a historic neighborhood. But on the other hand, we need to recognize that there is a cost—a social cost, not just a financial one—to all of that preservation, and think more carefully about how to balance those two interests.

Doug: And then there’s the issue of social control. Sidewalks can be places where anything goes. You can walk down the street, nobody cares what you’re doing. You can talk on the phone, you can listen to music, you can eat a sandwich while you’re walking. No one’s gonna tell you what to do, but certain people aren’t allowed to be on the sidewalk at certain times. Unhoused people can be harassed. People of color can be harassed by the police. In New Orleans, you talk a little bit about the types of behaviors they want to see and not see in the French Quarter. There’s public drinking, but they don’t really want people lingering and sitting outside at a bar, so there are to-go windows and things like that where you can take your hurricane in a plastic cup.

Doug: And then you have the other issue of places where there aren’t sidewalks—suburban communities, rural communities—where a city comes along, a town or a village comes along and says, because we see sidewalks as a part of our transportation network, or we have kids walking to school on your block, we are going to take part of your property and put sidewalks there. And people flip out. This is where it sort of mirrors a lot of other battles about housing, bike lanes, public space. What do we do in those situations?

Michael Pollack: Yeah. So the challenge is what do you do when the right thing for the town, the right thing for the city as a whole, is X, and the government recognizes that and is prepared to do something about it, but there is a part of that community that is vehemently opposed to it, where the opposition is of a sort of NIMBY nature. I agree in principle that that is a useful thing, or at least I’m willing to say that I agree in principle, but I don’t want it here. What do you do about that?

Michael Pollack: To say, as I was saying before, okay, we want a sidewalk network, but everyone who lives on this block doesn’t want it. On the one hand, one response is well, okay. They don’t need it. If they’re not going to use it, why put it there? The opposition can get in the way of what would benefit the community as a whole, but it’s precisely because it would benefit the community as a whole that they’re opposed to it, right? If no one was going to use the sidewalk to transit through, there’s less of a reason to be concerned about it. One of the reasons that most folks are upset about the installation of new sidewalk in their communities is a concern about what they might call increased foot traffic, what they might call increased crime, but what at the end of the day is just other people, people who are outsiders from that community crossing through that community. And I don’t have personally a lot of sympathy for that view, because that’s not what living in a society means. Living in a society means that you live with other people. And if you really, really don’t want that to happen, there are very rural communities where you can have that kind of distance from others. But if one chooses to live in a suburb or small town, or even in a city, particularly in a city, to say, I don’t want all of the things that come from that density, means you’ve chosen the wrong place to live.

Michael Pollack: So on the one hand yes, I’m sympathetic to governments that struggle with the politics of what do we do about this organized opposition? I think it’s a really challenging problem. On the other hand, what I want to say is a lot of times opposition melts away once the thing actually exists.

Doug: That’s the one thing I think a lot of these projects—congestion pricing, smoking bans, all the rest—have in common.

Michael Pollack: Exactly. And so what I want to say to local governments is be brave, ride out that opposition, because once the thing is started, people start to either embrace it or stop grumbling about it so much. So I think folks should be brave, and I can report a lot of people really are, right? A lot of the communities that I visited—and I did not pick them for this reason—have a lot of really brave officials who are eager to try new things, to try to make their communities better in all sorts of ways, but to try to expand sidewalks, make the sidewalks more useful, make them better for residents, for businesses, for people with disabilities, to try to find new solutions to these problems. And so there is a lot of energy out there on these issues. And so I view the book more as a cheerleading of what’s already happening and encouragement to others in other cities and towns to take up the mantle where they are.

Doug: Let’s talk about policing. Outside of a car, the sidewalk is probably the second place where most folks encounter the police, especially people of color. And we have countless terrible examples of Black people being murdered by the police—Eric Garner in Staten Island, for example, on a sidewalk outside a store. You have examples of Trayvon Martin, who was not killed by a police officer, but was killed by, you know, a neighborhood watch guy, George Zimmerman, as the kid was walking down the street, and he thought he didn’t belong here. So that plays into it a little bit, the suspicion of the other, for example, in racism. As you write in the book, sidewalks are a weird place, because they are public space. What does the Constitution say about some of these things, about what you can do on the sidewalk and what rights you have when you’re on the sidewalk? I know it’s a very broad question, but there’s so much happening on the sidewalk, and since so much comes down to race and policing in this country, your book has a lot to say about this.

Michael Pollack: Sidewalks are a space of a lot of surveillance too, and I want to talk about that as well. But the policing stuff, a lot of the Fourth Amendment law—Fourth Amendment being the one that regulates our encounters with law enforcement—a lot of that law was made, as you said, either in cases involving vehicles or in cases involving sidewalk encounters.

Michael Pollack: Folks might remember, especially here in New York City, the controversial stop-and-frisk program, where police were stopping individuals with huge racial disparities, frisking them—and a frisk is more than just a little TSA-style pat-down, but it can be a pretty invasive physical search on the sidewalk. That, as a matter of the Fourth Amendment—I want to hesitate when I say this—is generally permissible. That program was invalidated by a federal judge because of the racial disparities. But controlling for the racial disparities—and that’s a heroic assumption that one could control for that—a case called Terry is a case in which the Supreme Court held in the ’60s that the police are allowed to stop a person on the sidewalk. It is, after all, as you were saying, public space, and the police are allowed to frisk them for weapons to make sure that the encounter will be safe for the police officer. Obviously, this lends itself to biased application, biased enforcement. And that’s one of the risks. But even if it was not biased or was done in some neutral manner, it’s still a pretty hefty intrusion on our civil liberties in a public place.

Michael Pollack: In the book, I quote from a Law & Order: SVU episode where Detective Benson, who of course is the hero of the show, and she never uses her powers for bad, you know, tracks down a suspect on the sidewalk, accosts them, asks them some questions. That suspect’s attorney cries foul, and the ADA says, “I’m sorry, last time I checked, this sidewalk is a public space, and the police can do exactly that.” And that’s correct as a matter of law. And in the show, it’s that guy was bad, Olivia Benson was good. But in the real world, good and bad are a lot blurrier.

Michael Pollack: And police also can search the things that we have left on the sidewalk. So because the sidewalk is public space, if you leave trash or other things out on the sidewalk, they are often considered to be abandoned in the sense that you have given up your expectation of privacy in those things. So there’s a case called California v. Greenwood where the Supreme Court held that trash that’s been left on the sidewalk can be rummaged through by the police. That’s not a violation of your constitutional rights. And in cities like New York, where that is how we have our trash and our recycling picked up, it means that there’s a lot of stuff that we put out on the sidewalk that can be searched by the police.

Michael Pollack: And that’s because, as you were saying, it is this public space. But because of all the private activity that we do on it, yeah, it raises these questions about what the proper role of the police is. And one of the messages I offer in the book is, as a matter of the Constitution, that decision is largely left up to local governments and local police agencies, not up to the law. Rather, the law says this is a space where policing is more or less fair game. And if local police departments, as a matter of policy, want to not do that, well, that’s their prerogative, and that’s our prerogative as voters and residents to advocate for various things, but the law permits that kind of encounter.

Michael Pollack: I’ll add, after the book went to press, we started to see the activity of ICE on city sidewalks, particularly in Minneapolis and elsewhere, the activity of the National Guard in Washington, DC, and elsewhere. That’s just another example of law enforcement activity taking place on the sidewalk in really dramatic effect, in ways that are, I think for a lot of folks, quite troubling, quite upsetting, but as a matter of the law, generally quite legal.

Doug: Let’s move to another constitutional idea, and that’s free speech. We’ve been saying over and over again that the sidewalk is public space. There’s this expectation that free speech exists in public spaces, but the Constitution and the Supreme Court have very interesting, let’s say, views about this. Now the example you cite in the book is we all understand that we can go to the steps of the Supreme Court and hold a sign saying, “Gun Rights Now,” “Abortion Rights Now.” The other side can do those things, too. But what does the law say about picketing on a public sidewalk in front of a Supreme Court justice’s home?

Michael Pollack: Well, it’s not actually clear. The First Amendment, the Constitution’s rule on sidewalk speech, is that the sidewalk is generally considered to be what’s called a public forum. Public forum is a place where the government can’t engage in viewpoint-based discrimination. So it can’t only allow one perspective to be offered. It has to allow both perspectives or all perspectives to be offered on a given topic. And it can’t engage in content discrimination. So it can’t pick and choose what topics can be discussed or spoken about or what kinds of expression can take place there.

Michael Pollack: So that sounds like okay, anything goes on the sidewalk, anything goes in a public forum. Well, not exactly, because the government can still engage in content-neutral and viewpoint-neutral regulations of expressive activity. So not picking and choosing a side, not picking and choosing a topic, but engaging in what we often call time, place and manner restrictions. So the government can impose certain hours, certain volumes, where you’re allowed to be, right? All of that is within the realm of permissible government regulation.

Doug: Well, the example you cite in the book is protests outside of abortion clinics. There are restrictions on where and how and when those protests can take place, usually.

Michael Pollack: That’s right. So at least for now, the law under the First Amendment is that a city that chooses to—and again, cities that don’t, don’t have to—but a city that chooses to can impose what’s called a “buffer zone,” a certain radius around the entrance to an abortion clinic where protest or speech cannot take place. And by the way, it has to be content-neutral and viewpoint-neutral, so both for and against abortion rights can’t take place in that zone.

Michael Pollack: We see similarly when it comes to polling places at elections. There is federal law that says that you can’t engage in electioneering. You can’t campaign for or against a candidate within a certain radius of the entrance to the polling place. And so you’ll often see, if you look carefully the next time you go and vote, some mark on the sidewalk or in the parking lot showing this is the zone after which or beyond which electioneering is permissible. And that’s where you’ll see folks with fliers or doing exit polls standing. So we engage in these spatial regulations of where speech can take place, because again, they’re viewpoint neutral.

Michael Pollack: You said, what about protesting in front of a justice’s home? So there are cases that get at this question of can a city prohibit protesting or prohibit picketing in a residential neighborhood? Well, on the one hand, it sounds like, well, sure, right? That’s viewpoint neutral. It’s content neutral. It’s a place restriction. On the other hand, in some municipalities, almost all of it is residential, right? Does it become effectively a total ban on public speech in that municipality? So the court held in a case from a while ago called Frisby, F-R-I-S-B-Y, that suggested that these limitations on protesting residential neighborhoods are permissible, are constitutional. That case was unique in some ways. And so there’s still a bit of an open question whether it would be permissible for a city to ban it in residential neighborhoods. The point is a lot of cities actually haven’t done that, and so that’s why you could have protesting in front of a Supreme Court justice’s home, because it is legal as a matter of local law to engage in that speech in that place. To take a much more mundane example, it is constitutional for a city to ban the use of chalk on the sidewalk.

Doug: I want to jump in and ask you to explain, as you talk about right at the beginning of the book, the case of six-year-old Natalie Shaw.

Michael Pollack: Yeah. So Natalie Shaw was—her parents were cited, fined, because she had drawn a hopscotch, what have you, on the sidewalk near where she lived. But in New York City, that’s illegal. In Washington, DC, that’s illegal. These laws have been challenged as unconstitutional. Those challenges have failed. And the logic behind why cities do this is that it is defacement of property. Now one wonders, or I think ought to wonder, how much defacement is it really if it will wash away in the rain? And it also raises interesting questions of to the extent that it is private property or a space of private responsibility, at least, why should it be considered the government’s business whether it’s defaced, right? So this gets into these questions or this tension of how, as we were saying throughout our conversation, the government treats this space as private responsibility when it sees fit to do that, or as a space of public power when it sees fit to do that. And it’s that inconsistency that I find so bothersome. Pick a lane, right?

Michael Pollack: And then just on the point about the sidewalk chalk in particular, or as an example of sidewalk speech regulation in general, just because the First Amendment says a city can prohibit chalking doesn’t mean a city should prohibit chalking or needs to do that. Now one of the potential reasons why a city might want to do that is a concern about offensive or racist or threatening chalk. And because of what I was saying before about those content neutrality and viewpoint neutrality rules, it might be difficult to draw lines between what kind of chalking is permissible and what kind of chalking is not permissible, right? If the city started to say, okay, kids are allowed to do the hopscotch, but no political messages are allowed, well, that would raise its own set of First Amendment questions. And so it’s easier, it’s more cleanly legal to just say no to it altogether.

Doug: And they can kind of hide behind aesthetic standards.

Michael Pollack: Exactly.

Doug: They can just say, you know, we don’t want the chaos and the clutter on the sidewalk, so no chalking, no impermanent markings of any kind, because that way you stop the racist stuff, you stop the pro-abortion stuff, the anti-abortion stuff, but then you also stop the six-year-old from playing hopscotch.

Michael Pollack: That’s right. And, you know, I’m sympathetic. The bind that cities and towns find themselves in—and it’s not obvious to me that the ban on chalk is such a bad idea, as ridiculous as some of the individual cases might sound, because again, it is the most straightforward way to address and prevent what could be really problematic wars of messaging on the sidewalk, and for that matter, just a lot of clutter and chaos. There are those who throughout, you know, the last century—Jane Jacobs, William Whyte among them—you know, have looked at sidewalks as a place of sort of beautiful disorder, of beautiful chaos, out of which can emerge a really vibrant community. And part of me is on board with that message, but more of me actually is not.

Doug: Yeah, explain.

Michael Pollack: So part of what I’m concerned about is sort of an analogy to what we call the tragedy of the commons, that too much of a good thing can be bad, that public space when it is open to everybody and open to whatever uses they wish to engage in, can get degraded, or the quality of the experience can get degraded for everybody. There needs to be some way to prevent or at least mitigate the inevitable conflict between uses so that the space is usable for all of those uses, is workable for everybody.

Doug: Well, I think you see this play out here in New York in the debates we’ve been having over souvenir hawkers on the Brooklyn Bridge, which render the path somewhat unusable for pedestrians and tourists, or people selling fake Christian Dior and Chanel bags on Canal Street, which is a time-honored New York City tradition, but at the same time, those sidewalks are incredibly crowded, and there isn’t exactly a lot of room for a lot of people to spread out blankets and put fake handbags out to sell for $20 or whatever. So, you know, I’m sort of with you, but again, it’s this gray area of, like, what do we want this sidewalk to be for? And don’t those guys have just as much of a right as me who’s just walking through to run some errands?

Michael Pollack: And they absolutely do. You hit the nail right on the head. The question that I want folks to ask themselves is: What do we want the sidewalk to be for? The answer might be different in different cities. It might be different in different parts of given cities and towns. My concern is that we haven’t asked that question in a very long time, if ever. And so we’ve ended up now in a place where the sidewalks are for whatever has sort of ended up happening there, rather than actually thinking from first principles about what do we want this to be and how do we get there.

Michael Pollack: And so sidewalk vending, as you said, a time-honored New York tradition. I’d like to see it stay. Should it be everywhere to the degree it is? Probably not, right? It raises concerns for safety, accessibility, other uses of the space. Who should decide? Well, we should decide. We as voters, we as residents, we should decide. And that means really thinking carefully about what our interests are, what would be good for the long-term health of the community, health of the economy, safety of kids, of older folks, everybody. And how do we plan and regulate the space so that all the uses can coexist in a somewhat more harmonized fashion? So Jane Jacobs famously used the phrase “the sidewalk ballet” to talk about the sort of beautiful chaos. My suggestion is I do think that ballet, while great, needs a choreographer.

Doug: So I want to bring it back to the Department of Sidewalks, as you propose in your book. Now there’s part of me when I read that and I thought about that, I was like, okay, it does make sense, right? Like, there is this alphabet soup of agencies, and there’s something going wrong on my sidewalk. And that can be anything from a crime in progress to someone vending something that they shouldn’t, to a repair, to a fire hydrant that is leaking. And I don’t necessarily know who to call, even if it’s the fire hydrant. Do I call 911? Do I call my local firehouse? So I call 311. That’s ostensibly what 311 is for, to be this clearinghouse where you, the individual citizen, you do not have to know who to call, you don’t have to have some guy in the city council office who you’re friends with. You just call 311, you report it, it gets sent to the right agency. How would a Department of Sidewalks differ?

Michael Pollack: For one thing, 311 is mostly reactive. It’s about hearing complaints and farming them out. But the biggest difference is not the reactive, but the proactive, right? That the Department of Sidewalks would be doing the work, identifying the flaws in the terrain, identifying the conflicts in use, and proactively going out there to regulate them and manage them and to fix the space.

Michael Pollack: So what I view the department as doing is one, taking on those misallocated private responsibilities for repairs, snow shoveling, and whatnot. And two, consolidating all of the alphabet soup. So to the extent that you or I are calling 311 or making a complaint, from our perspective, it’s not actually that different, right? We’re making the complaint. It’s on the back end how it’s being farmed out. That’s where the difference is occurring.

Michael Pollack: The way in which I think it is different from our perspective as residents is suppose one of us is operating a business, we want a permit. Or we’re gonna do some construction on our home, we need a permit. We will be able to go to one permitting authority instead of many. That one permitting authority will make our lives easier, because it’s a one-stop shop, and it will make the permit itself that gets granted be more appropriate for the space because the agency granting that authority—or rejecting that permit for that matter—will be thinking about, okay, how will this person’s request impact all the other potential uses of the space? Right now, that thought process might entail seven different agencies who might not be communicating all that well about those impacts or spillover effects, whereas if it was all brought together into one agency, all of those spillover effects wouldn’t be spillover anymore.

Doug: So tell me if I’ve got this right. Right now, the Department of Transportation goes around and assesses the quality of the streets, and says, this block, these four blocks have triggered the need for repaving, remilling, et cetera. You’re suggesting a Department of Sidewalks could do the same thing, send inspectors around a town or a city and say, we’ve got this crack over here, this tree branch has uprooted the sidewalk over here, this sidewalk is crumbling over here. We have now triggered the threshold for a three-block sidewalk reconstruction program, and that that money to pay for that comes out of a general fund of taxes or a larger assessment.

Michael Pollack: That’s absolutely right. But I want to go a step further, which is everything you just said in a lot of cities is already how DOT does approach the sidewalks, right? DOT approaches the sidewalks like they approach the streets.

Doug: But they approach it at the property level, right?

Michael Pollack: Correct. Yes. But in terms of making the assessment about what the quality looks like and all the rest. What I want to say is there’s so much more going on here than just getting from point A to point B and from just the terrain. It’s all that other stuff that I think that transportation departments are not well suited to regulate, perceive and manage, that right now other departments are handling, whether it’s buildings, consumer affairs, health and safety and welfare, or whether it’s restaurants and whoever regulates them, the fire department, the police department, various transportation agencies. It’s all of those other things that are taking up sort of legal space on the sidewalk, regulatory space on the sidewalk. That’s where I think both the sort of duplication emerges and the gaps that I was talking about before, right?

Michael Pollack: So just when it comes to preventing or fixing the cracks or the snow and whatnot, the biggest change I’m talking about is moving it from private responsibility to public responsibility. I think we can do even more than just reallocate those private responsibilities into public hands, but coordinate and sort of make sensible the spaghetti of current public regulations, tighten that up into one more coherent set, and have one overseer rather than multiple.

Doug: Well, it is a fantastic book. It really will cause you to look at your built environment and the sidewalk in a different way. Truly, I agree, one of the most overlooked parts of our built environment, of our cities, of our towns. Michael Pollack, thank you for joining The War on Cars.

Michael Pollack: Thank you so much.

Doug: That’s it for this episode of The War on Cars. I want to thank Michael Pollack once again for joining me. You can pick up his book, Sidewalk Nation: The Life and Law of America’s Most Overlooked Resource, wherever books are sold. I will put a link to our Bookshop.org page in the show notes.

Doug: Remember, if you like what we do here at The War on Cars, please sign up to support us on Patreon. Just go to Patreon.com/thewaroncarspod and sign up today. You will get monthly bonus episodes, including an extended version of this episode, free stickers, and a whole lot more.

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Doug: The War on Cars is produced with support from the Helen and William Mazer Foundation. This episode was recorded at the Brooklyn Podcasting Studio by Justin Fernandez. It was edited by Yesenia Moreno. Our theme music is by Nathaniel Goodyear. Transcripts are by Russell Gragg. Our logo is by Dani Finkel. I’m Doug Gordon, and on behalf of my co-host Sarah Goodyear, this is The War on Cars.