Car
Chrysler New Yorker
The Chrysler New Yorker is a large, older luxury car made by Chrysler. It was designed for comfort and bigger size. It may come up in winter or city discussions because large older cars can be harder to manage when roads are snowy or icy.
Term
parking minimums
Parking minimums are rules that tell developers they must build a minimum number of parking spaces. That can take up land that could otherwise be used for homes, stores, or walkable streets.
Term
high cost of free parking
Even if parking feels “free,” it usually costs money somewhere—like higher building costs or higher prices. That can make it harder to afford housing or support local businesses.
Term
impervious surface
Impervious surface means the ground covering doesn’t absorb water. So instead of soaking in, rain runs off faster, which can worsen flooding.
Term
green infrastructure
Green infrastructure means using nature-based solutions (like plants and soil) to handle rainwater. Instead of letting water run off quickly, it helps absorb and manage it.
Term
bioswales
Bioswales are planted drainage areas that catch rainwater. They help slow it down and let it soak in or get filtered instead of rushing straight into storm drains.
Concept
historic preservation
Historic preservation is when a government limits what owners can do to older buildings or historic areas. The debate is that these rules can make it harder or more expensive to use the property, which can lower its value.
Term
takings clause
The takings clause is a rule that says the government can’t take your property for public use without paying you fairly. It’s meant to protect property owners from being forced to absorb the cost of public projects.
Term
Fifth Amendment
The Fifth Amendment is part of the U.S. Constitution that includes protections for people and property. Here, it’s the amendment that contains the rule about paying compensation when the government takes property for public use.
Term
eminent domain
Eminent domain is when the government can take private land for a public project. The key point is that the owner should be paid fairly for what’s taken.
Concept
government regulation
Government regulation means the government sets rules for what you’re allowed to do with your property. Even without taking the land, regulations can still make the property less valuable or more expensive to manage.
Term
Penn Central
Penn Central is a famous Supreme Court case about when government rules affecting property are serious enough that the owner should be paid. In the transcript, it’s used to explain why some historic preservation rules don’t automatically require compensation.
Term
landmark law
A landmark law is a rule that protects certain buildings as historically important. If your property is designated, you may not be allowed to change it freely, which can affect what you can do with the building.
Car
Porsche 911
The Porsche 911 is a sports car made by Porsche. It’s known for its classic look and performance. People may mention it when talking about car repairs because some maintenance can be more involved than on simpler cars.
LIVE
Hey everybody, just a quick note, this is the general release episode.
If you're a Patreon supporter, you're going to get an extended version of this episode
with more content, a longer interview with our guest Michael Pollock.
Just go to patreon.com slash the war on cars pod, 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 slash the war on cars pod. Thanks.
So Sarah, there's a question. Everybody always asks people who are into cycling,
how many bikes do you have? How many bikes do I personally have?
Your family, how many are in your household? Okay, this is going to take a second.
I think we have 88 between three of you.
Yeah. How many of those are electric?
00 So you have not joined the e-bike revolution that's happening all around us?
No, I haven't, but I'm going to say that I have been sorely tempted. I've been thinking about it.
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 TWOC 100? Why, that might encourage me to buy a used refurbished e-bike
from Upway.co. Wow, it's almost like you know we're doing an ad, Sarah.
It's also completely sincere. 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 10 bicycles between the four of us and
three of those are electric. I think I've got to get on this bandwagon.
All right, so go to Upway.co, we'll put a link in the show notes, use code TWOC 100
and you can save $100 off any e-bike purchase of $800 or more.
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
lower priority. 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 sidewalk, 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 online 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
space and private property. 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. 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 slash The War on Cars pod. If you
like what we do, you can sign up for just $3 a month. Again, that's patreon.com slash The War
on Cars pod. My guest for this episode is Michael Pollock. 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 Pollock, welcome to The War on Cars. Thank you so much, 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 walk since, 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? 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.
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
protests 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. 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? 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 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. 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 pass 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 government. 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. 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. So the classic example as a New Yorker, but this is true in other cities,
is snow removal. It is a public right of way. We plow the roads, the 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. That's exactly right. And 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 fall cycles. It cracks for overuse. It cracks because big tree roots throw up the pavers.
The cost to repair that sidewalk also often falls on the adjacent property owner. 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.
Right. They might not know the threshold that triggers. 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? 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 by in terms of budgeting their household finances.
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. Well, right
away you've listed three departments and I'd like to make have that just be one. I did that on purpose.
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. 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 to 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. 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.
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 sidewalk. So they have by and large put private property owners out of the
sidewalk business and move this responsibility into the city government. 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. 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. And then there are the economies
of scale. Exactly. 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. That's exactly right. 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. 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. That's exactly right. 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.
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. Yeah, I'm thinking about that in the context of an aging population. Exactly. That
if you do not have an accessible sidewalk, you are at a certain point when you age out of driving,
trapped at home. That's exactly right. And folks with mobility limitations, whether permanent or
temporary, face the same kinds of hurdles, even people with a stroller, or here in New York
City, I think a lot of folks have what we used to call granny carts, 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. 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.
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 are 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. 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've said,
that's not quite right. They don't have zoning, they have land use regulation. So, there are a lot
of regulations of 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. 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.
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 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 store, and the wide roads separate
one side from the other. So I do think that cities are different, and I don't have a one-size-fits-all
prescription here. 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 the 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 going to 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. 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. Absolutely. Absolutely. But generally, that's kind of how
Houston is perceived and other cities like it. 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
interest of affordable housing, and it advances the business community by enabling more space to
use for retail and for business and for customers rather than just for parking.
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 do you write that if so few people are going to 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? Yeah, let's remember sidewalks are often 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 going to install a very simple concrete sidewalk. That's 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. 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 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 going to 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 waving or limiting this
requirement or the imposition of this requirement, recognizing this problem. What I would say is,
to my point earlier about the sidewalks as a network, they ought to be installed
all together 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 going to be usable, it's not really worth the expense
or the environmental cost. So let's move to New Orleans because a lot of these issues come
together. There are 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. Yeah, trees are absolutely a bit of a double
edge 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. I've walked
around New Orleans and easily a foot, like a stair. Absolutely. And so 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. That
means making repairs. It means being thoughtful, especially where you're going to be planting
new trees, about where you're planting them, how should the sidewalk be
elevated higher above the root bed. Some cities are starting to do that to prevent this exact
kind of problem. Now, there are also parts of New Orleans that don't have very much tree cover.
These seem to be predominantly poorer neighborhoods, most 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 poorer
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.
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. It's important to be sensitive to,
okay, why is this stretch of sidewalk in rough shape and not to assume a one-size-fits-all
problem and one-size-fits-all solution? 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 uprooted by trees,
those white neighborhoods, people have access to a car.
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. There's another inequity there and all of this burden falls on the sidewalk
in different ways. Adding to that, the availability of public transportation is also
very disparate based on wealth and race in cities throughout the country. In New Orleans,
a lot of, 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. You compound this problem in the poor 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. That storm of inequities really calls into sharp
relief. How do we create city law? How do we create city governance? 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,
sort of one size fits all assumption. We here at the War on Cars have been on the road a lot in
the last few months and I've gotten to be pretty much of an expert at packing my bag with just
what I need to face any combination of weather obstacles. One item I never leave behind, my
Cleverhood Zipster, which I have worn as a top layer in colder weather or on its own when it's warm
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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? 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. Can you explain
the takings clause because I found this fascinating? Sure. 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. 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. And so one of the main cases called Penn Central was a challenge
to New York City's landmark law, his Rec Preservation Law. Property owner said,
you're going to 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. 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 going to be depleted someday. 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. 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.
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 going to 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.
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?
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? 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. 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.
That's the one thing I think a lot of these projects, congestion pricing,
smoking bans, all the rest have in common. 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. 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 of 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 of 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. The 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. Folks might remember, especially here in New York
City, the controversial stop and frisk program, right, where police were stopping individuals
with huge racial disparities, frisking them. And a frisk is more than just a little TSA style
patdown, 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.
In the book, I quote from a Law and Order SVU episode where Detective Benson, who, of course,
is the hero of the show, and she never uses her powers for bad, 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, that guy was bad. I love
you, Benson, was good. But in the real world, good and bad are a lot blurrier, 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 vs. 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. And that's because, as you were saying, it is this public space.
But because of all the private activity 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. 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, D.C. 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 it's a matter of the law,
generally quite legal. 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?
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
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.
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.
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.
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 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 protests
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.
We see similarly when it comes to polling places at elections, there is federal law that says that
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
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 flyers or doing exit polls standing. So we engage in these spatial regulations of where
speech can take place, because again, they're viewpoint neutral. 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 a while ago called Frisbee, 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 shock on the sidewalk.
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. Yeah. So Natalie Shaw was, her parents were cited,
fine, 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, D.C., 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. 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. And then just on the point about the sidewalk talk in particular,
or as an example of sidewalk speech regulation in general, you know, just because the First
Amendment says a city can prohibit shocking, doesn't mean a city should prohibit shocking 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 shock. 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 shocking is permissible and what kind of shocking is not permissible.
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. And they can kind of hide behind
aesthetic standards. They can just say, you know, we don't want the chaos and the clutter
on the sidewalk. So no shocking, 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.
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 and White, 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. Yeah, explain. 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.
That 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.
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 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? 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? 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 about
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.
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 9-1-1?
Do I call my local firehouse? So, I call 3-1-1. That's ostensibly what 3-1-1 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 3-1-1. You report it. It gets sent to the right agency.
How would a department of sidewalks differ?
For one thing, 3-1-1 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. So, what I view the department is 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 3-1-1
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. 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. We're going to 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.
If it was all brought together into one agency, all of those spillover effects wouldn't be spillover
anymore. Tell me if I've got this right. Right now, the Department of Transportation
goes around and assesses the quality of the streets and say this block, these four blocks,
have triggered the need for repaving, remilling, etc. 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.
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. DOT approaches the sidewalks like
they approach the streets. But they approach it at the property level, right? 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? So,
just when it comes to preventing or fixing the cracks or the snow and whatnot, right,
there 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.
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 Pollock, thank you for joining The War
on Cars. Thank you so much. That's it for this episode of The War on Cars. I want to thank Michael
Pollock 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
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About this episode
A wide-ranging discussion of Michael Pollock’s book “Sidewalk Nation” reframes sidewalks as a critical, heavily used transportation and public-life space—yet one governed by confusing, often private-responsibility rules. Pollock explains how sidewalks sit in a legal “liminal” zone between public and private property, leading to patchy maintenance duties, unpredictable costs, and uneven accessibility. Snow clearing is just the visible example; repairs can be thousands. The conversation also touches on sidewalks’ many roles beyond walking and Pollock’s proposal for a dedicated “department of sidewalks.”
Original notes
In most parts of the United States and elsewhere, sidewalks exist in a legal grey area. They are public spaces that, at least when it comes to things such as maintenance and snow removal, are largely the responsibility of private property owners. They are subject to all manner of laws that govern what kinds of activities can take place on them, laws that change not just from city to city, but sometimes from neighborhood to neighborhood, block to block, and address to address. They are also an important part of the transportation network and a key component in the effort to keep pedestrians safe, although certainly not a panacea, even in rural areas.
Michael Pollack, the author of an excellent new book, Sidewalk Nation: The Life and Law of America's Most Overlooked Resource, thinks that sidewalks need a whole lot more consideration in legal and governing circles, and even goes so far as to advocated for the creation of a Department of Sidewalks that can cut through the rather opaque rules that govern these narrow strips of concrete. (Or other materials, given that many sidwalks are often governmed by historic preservation laws.)
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SHOW NOTES:
Buy Sidewalk Nation: The Life and Law of America's Most Overlooked Resourc and support independent booksellers at our official Bookshop.org page.
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