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Michael Pollack, Sidewalk Government (Aug. 23, 2022), available in draft at SSRN.

In his forthcoming article, Sidewalk Government, Michael Pollack explores the nature and governance of sidewalks in the U.S. through both a property law and local government lens. While most of us have likely used a sidewalk to get from one place to another, we often don’t think about the many complex ways that localities govern these critical spaces.

When I moved to Maine over a decade ago, I was surprised to learn that I was personally responsible for shoveling snow off the sidewalk in front of my house. A few years later, the city expanded the boundaries of the downtown Business Improvement District (“BID”) to cover the other side of my street, after which my across-the-street neighbors no longer had to shovel; the BID did it for them.

More recently, when I moved to Denver, I learned that I would be responsible not only for snow shoveling, but also for replacing the big, expensive, red flagstone slabs that made up the sidewalks in my historic neighborhood if they were to become cracked. Yet in Maine, the city was responsible for fixing tripping hazards on the brick sidewalk in front of my house.

Pollack’s work explores sidewalks as contested spaces. They are sites of conflict regarding ownership, management, and use. The pandemic has made this fact even more evident. In the face of restrictions on indoor dining, many cities moved to expand outdoor seating to allow restaurants and bars to stay in business, and to allow people to congregate more safely.

Although al fresco dining has long been the norm in some cities (and throughout much of the world), cities began to liberalize their permitting and fee requirements, and loosened restrictions on the construction of shelters to protect diners from rain and cold. And while patrons of those establishments often relished the changes, neighbors complained of noise and trash, and others struggled to walk or pass by these tables with enough space to socially distance or fit a wheelchair.

Pollack begins by describing various competing sidewalk users and uses, and he describes the ways that they are often in conflict with each other. He notes that the law surrounding sidewalks is often designed to prioritize moving people from place to place—what Nick Blomley has called “pedestrianism” in his great book about sidewalks.1

But, of course, pedestrians are only a small set of sidewalk users. Pollack also discusses: residents of the neighborhood (both housed and unhoused) who use the sidewalk as an extension of their living space; property owners and lessees who use the sidewalk for commercial purposes or to otherwise benefit their ownership; non-owner commercial interests like vendors, buskers, and rental bikes and scooters; communities gathering together for events, protests, or activism; and governments and utilities that use sidewalks for infrastructure. He notes that the law has not evolved to address the varied conflicts that arise between these competing users.

Pollack then discusses different ways that cities could ameliorate the conflicts that occur on sidewalks, which he likens to common pool resources. He sets aside regulation through norms, given that the uses and users of sidewalks are so disparate and often not close-knit.

He then turns to the role of property law and public regulation and suggests that both have failed thus far. This is in part because of the way that municipal laws tend to place responsibility for sidewalks on abutting property owners, although the sidewalks themselves are publicly owned (or at least subject to an easement for public use).

Abutters are often the ones who must shovel snow or repair broken sidewalks, and in some instances, they are even held liable for injuries that occur on these ostensibly public sidewalks. Although this outsourcing arrangement might be convenient for cities, it’s not necessarily an efficient way to run a city. Further, it often results in the unequal provision of quality, usable sidewalks.

Thus, the laws governing sidewalks have muddled the rights and obligations of both the public and the private. Because of the lack of clear boundaries, sidewalks are akin to liminal spaces where conflict is more likely to arise.2

Although local government regulation can often remedy conflicts in cities when default property rules fail, it too has failed in the context of sidewalks.

The specific problem that Pollack identifies is that the governance of sidewalks in most localities is highly fragmented. While the local department of transportation might be responsible for some uses and users, the planning department, parks department, or consumer affairs department might be responsible for other aspects of sidewalk management, permitting, and control. This uncoordinated governance creates inefficiencies and makes it hard for users to navigate and obtain needed permits or approvals, or to submit complaints.

The solution to the problem of the sidewalks, Pollack suggests, lies in the fact that no one owns them. Thus, we should consider either privatizing these commons, or governing them.

He examines but rejects the idea of actually giving the full bundle of sticks to sidewalk abutters and restauranteurs (although he is open to some level of BID participation). Rather, he settles on the need to “enhance[], streamline[], coordinate[], and consolidate[]” our municipal regulatory architecture. His suggestion to achieve this end involves moving sidewalk maintenance obligations from individual abutters to the municipality itself, and the creation of a unified Department of Sidewalks.

Many cities are making their pandemic-era sidewalk dining expansions permanent. Delivery robots are beginning to make their way down sidewalks alongside people using wheelchairs and others pushing strollers. And with the effects of climate change worsening, cities will be looking to municipal property, including sidewalks, to build bioswales.

The competition for space on sidewalks is only increasing. As we enter this new era, Pollack’s suggestions should lead to less chaotic spaces that work for the whole panoply of sidewalk users.

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  1. Nicholas Blomley, Rights of Passage: Sidewalks and the Regulation of Public Flow (2011).
  2. Sarah Schindler, Reconsidering the Strength of the Boundary Line, JOTWELL (October 21, 2019) (reviewing David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753 (2019)), https://property.jotwell.com/reconsidering-the-strength-of-the-boundary-line/.
Cite as: Sarah Schindler, Who Controls the Sidewalks?, JOTWELL (November 23, 2022) (reviewing Michael Pollack, Sidewalk Government (Aug. 23, 2022), available in draft at SSRN), https://property.jotwell.com/who-controls-the-sidewalks/.