Sidewalk Government

This Article is about one of the most used, least studied spaces in the country: the sidewalk.

It is easy to think of sidewalks simply as spaces for pedestrians, and that is exactly how most scholars, policymakers, and laws treat them. But this view is fundamentally mistaken. In big cities and small towns, sidewalks are also where we gather, demonstrate, dine, exercise, rest, and shop. They are host to commerce and infrastructure. They are spaces of public access and sources of private obligation. And in all of these things, sidewalks are sites of underappreciated conflict. The centrality of sidewalks in our day-to-day lives is rooted in the fact that they are open to everyone and to all of these varied uses, every hour of every day, but it is that very vibrancy that risks being their undoing. As competing claims on sidewalks increase in both number and intensity due to cultural shifts, technological advances, climate change, and more, the sidewalks we take for granted may crumble—both literally and figuratively—under the weight of contradictory and self-defeating governing principles and uncoordinated governmental oversight.

This Article is the first to systematically examine the incoherence of the property law of sidewalks and of the fragmented regulatory architecture that municipalities have built to manage them. Drawing on insights from both property and local government law, as well as first-person interviews with current and former municipal officials, it demonstrates how both legal regimes have in fact deepened sidewalk conflict and have confused and undermined accountability for the quality and accessibility of sidewalks. With these shortcomings in mind, this Article charts a new course and constructs from the ground up a new municipal agency to administer the sidewalks—one that would be better positioned to protect and foster the utility and vitality of these critical social, economic, and political spaces.


In May of 2022, days after a leaked draft of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization revealed that the Court would overrule Roe v. Wade and permit states to ban abortion,1Josh Gerstein & Alexander Ward, Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows, Politico (May 3, 2022, 2:14 PM), []. a message appeared in chalk on the sidewalk in front of Senator Susan Collins’s home in Bangor, Maine.2Lia Russell, Susan Collins Calls Police After Abortion Rights Chalk Message Appears Outside Her Bangor Home, Bangor Daily News (May 11, 2022), []. The message called for Senator Collins to support the Women’s Health Protection Act, a bill to codify abortion rights at the federal level; it read, “Susie, Please . . . Mainers Want WHPA 🡪 Vote Yes, Clean Up Your Mess.”3Id. A statement from Senator Collins indicated that she contacted the Bangor Police Department and Department of Public Works to complain about this “defacement of public property in front of [her] home.”4Id.

Senator Collins was quickly and roundly mocked on social media for calling the police to complain about sidewalk chalk,5See, e.g., Southpaw (@nycsouthpaw), Twitter (May 10, 2022, 12:38 AM), []; Indivisible Guide (@IndivisibleTeam), Twitter (May 10, 2022, 7:29 AM), []; Lawprofblawg (@Lawprofblawg), Twitter (May 10, 2022, 1:22 AM), []; Jamil Smith (@JamilSmith), Twitter (May 10, 2022, 9:22 AM), []. but the incident neatly illustrates the almost universally messy relationship that property owners have with the sidewalk. Look carefully at the Senator’s statement: she describes the sidewalk as “public property,” but she pivots in the same breath to claim some sort of control, or even ownership, over that public property simply because it sits “in front of [her] home.”6Russell, supra note 2. And while Senator Collins is presumably aware that people have a right to engage in certain expressive conduct on public property,7E.g., Hague v. Comm. for Indus. Org., 307 U.S. 496, 515–16 (1939) (“The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all . . . but it must not, in the guise of regulation, be abridged or denied.”). her apparent proprietary feelings towards “her” slice of the sidewalk led her to seek to control that space and to determine the conduct deemed permissible on it.

Risible though it may seem, however, Senator Collins is not alone. Owners of property commonly identify with the adjacent patch of sidewalk and often feel entitled to exercise some power over that space and those who use it.8See infra Sections I.A.1–2, I.B–II.A. Even the headline of an article reporting the story calls the sidewalk “Susan Collins’ Bangor sidewalk”9Lia Russell, Chalk Message Supporting Abortion Rights Appears on Susan Collins’ Bangor Sidewalk, Maine Public (May 10, 2022, 10:09 AM) (emphasis added), [].—that casual possessive apostrophe denoting either ownership or, at least, an expected close association between the sidewalk and the person who happens to own the adjacent house.

Conflict between users of sidewalks, each laying incompatible claims to the space, and perhaps even each with a sense of ownership, plays out every day in big cities and small towns around the world.10See infra Section I.B. Sometimes, as it did on that street in Bangor, the conflict arises between an adjacent property owner and a member of the public. For example, the owner may operate a sidewalk café that limits the walking space available for pedestrians, or the public may protest on the sidewalk and interfere with the owner’s home or business.11See, e.g., Chloe Folmar, Morton’s Condemns Abortion Rights Protesters for Disrupting Kavanaugh’s Freedom to “Eat Dinner, Hill (July 8, 2022, 8:28 AM), []. But at other times the conflict may be between neighboring owners—one constructing sidewalk scaffolding or planting trees that block the other’s storefront—or between members of the public—vendors and buskers obstructing residents out for a jog. The list goes on. Indeed, whatever activities people may engage in on sidewalks—travel, commerce, speech, recreation, construction, exclusion, preservation, and much more—they necessarily collide with others engaged in their own activities in the same limited space.12See infra Section I.A.

Sidewalks are unique because they are the only place where this collision takes place with such frequency and at such scale. Consider the other basic classes of space. The uses of private property are tightly controlled by its owner with an eye toward whatever goals the owner desires. The uses of public streets are controlled by the government for the sake of safe and efficient vehicle transportation. And while the various uses of public parks, fields, and squares are less directed by government and may come closest to the cacophony of the sidewalk, they have no particular legal relationship with adjacent property owners. Indeed, the other, related reason why sidewalks are distinct is that they are a rare place where private individuals are often charged with obligations toward public space.13See infra Section II.A. For example, adjacent property owners in many municipalities must clear snow and obstructions from the sidewalk in front of their property.14See infra notes 151–154 and accompanying text. They owe no such obligation to nearby parks and squares, and they certainly owe no such obligation to the streets on which their property fronts. If one bears the burden of shoveling the snow on the sidewalk in front of one’s home, perhaps it is understandable that one might think of that space as theirs and, in turn, feel they can limit the messages scrawled on it.

For some, it is this very complexity—the multiplicity of users and uses, the interactions between them, the jumbles of ownership and control—that makes the sidewalk so special. The “sidewalk ballet” that urbanist Jane Jacobs saw in New York City sidewalks made them, in her estimation, the city’s “most vital organs.”15 Jane Jacobs, The Death and Life of Great American Cities 29, 49, 50 (1961). But for others, these conflicts are cause for concern. For anthropologist Margaret Mead, who is said to have remarked that “[a]ny town that doesn’t have sidewalks doesn’t love its children,”16Keister v. Bell, 29 F.4th 1239, 1244 (11th Cir. 2022). sidewalks are valuable as places for safe recreation. Bustling commerce and frequent protests, however, do not make for a child-friendly space. And for many urban planners, the importance of sidewalks rests primarily in their status as sites of transportation, which renders all of the other uses obstacles to be addressed rather than joys to be embraced.17See Nicholas Blomley, Rights of Passage: Sidewalks and the Regulation of Public Flow 12, 38–56 (2011).

The consequences of all of these users and all of this contestation about what and whom sidewalks are meant for are predictable: confusion and poorly resolved conflicts that threaten to degrade the quality of the space and the experience of its users.18See infra Part II. This Article seeks to turn the tide and chart a course toward saving the sidewalk. Specifically, this Article evaluates sidewalks through the lenses of the two main legal systems that regulate them—property law and local government law—and draws on interviews with municipal officials responsible for pieces of sidewalk life to demonstrate that sidewalk dysfunction arises primarily because too many people are partly in charge, but nobody is fully in charge.

In terms of property law, from clearing snow to repairing concrete and more, adjacent property owners have a number of owner-like obligations with respect to sidewalks.19See infra Section II.A. They also enjoy a number of owner-like privileges with respect to the space.20See infra notes 191–201 and accompanying text. But while they may accordingly feel like owners, they are not the owners of the sidewalk, and they have neither the full set of obligations nor the full set of privileges that an owner would have. For their part, local governments bear the remaining obligations and enjoy the remaining privileges on behalf of the public. But, as this Article shows, authority and responsibility for sidewalks are often fragmented across a large number of municipal agencies.21See infra Section II.B. Uncoordinated, inconsistent regulation and gaps in problem-solving are the common result.

A few recent developments increasing the number and intensity of competing claims on sidewalks have made circumstances even more urgent. First, the COVID-19 pandemic reshaped people’s uses and expectations with respect to the sidewalks in their communities. Where it was once relatively easy for most people to see a sidewalk as little more than a means for pedestrians to get from one place to another, the pandemic has led communities to see sidewalks in a new light—as places for gathering, for exercise and recreation, and, perhaps most controversially, for outdoor dining.22See, e.g., Sarah Schindler, Making the Temporary Permanent: Public Space in a Postpandemic World, 132 Yale L.J.F. 376 (2022) (discussing ways in which COVID responses changed the built environment). Second, new technologies and a wave of sidewalk-oriented startups increasingly use sidewalks as sites of commerce disconnected from adjacent property ownership.23See Telephone Interview with Matthew Daus, Former Comm’r, N.Y.C. Taxi & Limousine Comm’n (Mar. 11, 2022) [hereinafter Daus Interview] (observing that, owing to these developments, “the fight for the curb has never been more intense than it is now”); John Surico, Can Technology Help Cities Manage Curbs Better?, N.Y. Times (Aug. 25, 2022), []. Though many similar issues arise with respect to the portion of the street adjacent to the curb (the parking lane), this Article focuses on the sidewalk because the intensity and scope of the conflict among uses is even more acute on the sidewalk. Scooter- and bike-share companies like Lime and Bird, battery-powered mobile convenience store kiosks developed by Blank Street and Tortoise, curbside electric vehicle chargers, and even autonomous delivery robots operated by Postmates, Amazon, and others presage a future where the range of uses of sidewalks only grows.24See infra Section I.A.3; Joann Muller, Ride-Sharing and E-Scooters Are Growing Twice as Fast as Mass Transit, Axios (June 27, 2022), []; Ian Lovett, New York City Installs First Curbside Electric-Vehicle Charging Station, Wall St. J. (June 24, 2021, 12:09 PM), []. Third, climate change is accelerating the need for municipalities to adapt to extreme weather and adopt more green infrastructure. Sidewalks may play an important role; for example, they may increasingly need to incorporate trees and rain gardens or bioswales, or host underground stormwater retention systems.25See Vanessa Casado Pérez, Ignored Sidewalk Policy, State & Loc. Gov’t L. Blog (Jan. 12, 2022), []; Telephone Interview with Kristopher Carter, then-Co-Chair, Mayor’s Off. of New Urb. Mechs., City of Bos. (Jan. 4, 2022) [hereinafter Carter Interview].

In short, it is high time to take a careful and critical look at how this crucial public resource is managed.26See Casado Pérez, supra note 25 (calling for “more innovation in sidewalk policy”). The answer: quite poorly. And yet, in large part because the topic falls between so many stools, sidewalks are taken for granted—not just by many of the people who use them, but by governments and legal scholars too.27The legal scholar who has devoted the most attention to sidewalks as such is Vanessa Casado Pérez. Professor Casado Pérez’s work argues that we need more sidewalks and that municipalities, rather than private entities, should be in control of them. See Vanessa Casado Pérez, Reclaiming the Streets, 106 Iowa L. Rev. 2185 (2021) [hereinafter Casado Pérez, Reclaiming]; Vanessa Casado Pérez, Privatizing Sidewalks (Tex. A&M Univ. Sch. of L. Working Paper) (on file with author) [hereinafter Casado Pérez, Privatizing]. This Article tackles the distinct question of what that municipal control should look like. Moreover, Professor Casado Pérez locates the problem of sidewalks primarily in their absence or in their increasingly privatized nature, whereas this Article locates the problem in sidewalks’ inherent conflict among users and uses and in our failure to coherently regulate to manage that conflict. That is, even a greater quantity of sidewalks under complete public control will replicate many of the same failings that scarcer and privatized sidewalks engender unless and until we grapple with how they ought to be managed. Sociologists, geographers, and urban planners have devoted much more sustained and productive attention to understanding sidewalks, but their work has been more limited when it comes to offering legal analysis or legal solutions.28See, e.g., Blomley, supra note 17; Mitchell Duneier, Sidewalk (1999); Anastasia Loukaitou-Sideris & Renia Ehrenfeucht, Sidewalks: Conflict and Negotiation over Public Space (2012); Janette Sadik-Khan & Seth Solomonow, Streetfight (2016); Annette M. Kim, The Mixed-Use Sidewalk: Vending and Property Rights in Public Space, 78 J. Am. Plan. Ass’n 225, 231 (2012); see also Jacobs, supra note 15. And when it comes to legal scholars, almost none have considered sidewalks either as a question of property or as a question that property law might help to solve.29See, e.g., Kim, supra note 28, at 231 (observing that “a property rights framework is not often used to discuss public space”). Where property scholars do engage with sidewalks, it is often as an example or test case rather than as a subject deserving of its own sustained attention.30See, e.g., Nadav Shoked, Property Law’s Search for a Public, 97 Wash. U. L. Rev. 1517, 1528 (2020) (employing sidewalks and parks as test cases of “the considerations that must affect the law when it attempts to designate the ‘public’ that should control a given public right”); David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753, 757 (2019) (drawing on sidewalks, among other things, to “explain why it is useful to think of property, not in the binary terms of private ownership . . . but instead in terms of a private core, boundary, and edges found on both sides of the boundary”). Finally, the local government law literature has largely overlooked the question of how municipal governments ought to be organized to most effectively and efficiently administer sidewalks.31Nadav Shoked’s work has cast a careful eye toward the municipal provision of public spaces, but with a focus on the distinct yet important question of how to conceive of who the “public” are when considering public property rights and the public trust doctrine. See Shoked, supra note 30. This Article, by contrast, focuses on municipal institutional design and the role of private entities in public space maintenance.

It is primarily toward these oversights that this Article is addressed. First and foremost, this Article shines a much-needed light on the uniquely large array of conflicts that inhere in sidewalks and exposes the tangled web of power and responsibility with respect to sidewalks that property law and municipal laws have created. Second, and closely related, it seeks to connect the two, demonstrating that these conflicts go inadequately resolved because there is nobody empowered with the wide-angle lens necessary to see and address all of them in a coherent fashion.

But this Article also offers a solution. Informed by the experiences of officials in the trenches and building on insights from the administrative law literature, this Article provides a rough design for a new municipal agency called the Department of Sidewalks. Equipped with the vision and the tools needed to mediate among the myriad of users and uses, the Department of Sidewalks would be positioned to take on more responsibility—thus shifting power and costs away from adjacent property owners—and to direct and deploy its resources in a coordinated manner that would produce policies better informed by the needs and interests of the full panoply of sidewalk stakeholders.32See infra Section III.B.

This Article proceeds in three parts. Part I catalogs and categorizes the wide array of sidewalk users and uses. It then demonstrates at least some of the ways in which those uses necessarily come into conflict with one another. Part II assesses in-depth the two means by which law has sought to resolve those conflicts: the law applicable to adjacent property owners and the regulatory architectures that municipalities employ to regulate users of sidewalks. This Part reveals that, not only has law failed to govern sidewalks, but law has exacerbated sidewalks’ governance problems and contributed to the confusion surrounding users’ rights and privileges. Part III turns to solutions. After explaining why greater private control of sidewalks is a misguided, if tempting, prospect, this Part justifies and sets out a plan for the Department of Sidewalks. While this Article does not claim to offer a perfect, one-size-fits-all template for agency design in every municipality, it provides a starting point for a better way of ensuring that sidewalks everywhere remain a functional space for all manner of people and activities.

I. Sidewalk Life

The first step in grappling with sidewalk governance is understanding what sidewalks really are. Perhaps that seems straightforward; in the words of one federal court, a sidewalk is simply “an area for walking along the side of the road.”33Roulette v. City of Seattle, 78 F.3d 1425, 1426 (9th Cir. 1996). Indeed, the earliest sidewalks—reportedly built in Ancient Anatolia around 2000 BCE and later found in Ancient Rome—were precisely that: little more than an area for pedestrians separated from carriages and other vehicles.34 Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 15–16; Pompeii Sites (@pompeii_sites), Twitter (Mar. 10, 2021, 9:33 AM), [] (depicting ancient Roman sidewalk). American municipal law has taken the same position, simply assuming that “walking is the primary use” of a sidewalk and consequently building a regulatory architecture around ensuring the safe and smooth movement of traveling pedestrians.35 Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 17–18; see, e.g., Nicholas Blomley, Civil Rights Meet Civil Engineering: Urban Public Space and Traffic Logic, 22 Canadian J.L. & Soc’y 55, 64 (2007) (“Public space is [understood by courts and planners as being] not for democratic dialogue and encounters with alterity. Rather, it is for transport and flow.”).

But whatever the normative virtue of this vision of sidewalks—which Professor Nicholas Blomley has called pedestrianism36See Blomley, supra note 17, at 38–56.—it is at odds with reality. Pedestrians are most assuredly an important set of sidewalk users, but they are not alone and their uses often revolve around and relate to numerous other distinct uses. This Part undertakes an in-depth description of sidewalks as they are actually used—both lawfully and unlawfully—focusing both on the nature of the activities and the identities of the users. It then explores the conflicts that arise between these uses and necessitate some form of sidewalk government.37There are certainly many places without sidewalks at all, and the ways in which their absence shapes uses of the street and gives rise to conflict there are ripe for further similar research. But this Article focuses on sidewalks where they exist.

A. Users and Uses

Beyond pedestrians, sidewalk users can be sorted into five categories of increasing scope: residents, property owners, nonowner commercial interests, communities, and governments and utilities. Though a given person or entity may fit into more than one category, each category corresponds to a set of distinct uses. In other words, a residential property owner engages in certain uses as a resident and others as an owner of property adjacent to the sidewalk—a reality that adds to the conflicts between users and uses discussed in the next Section.

1. Residents

The first category of sidewalk users is residents. By using the term “residents,” I mean to capture people using the sidewalk as an amenity of their neighborhood or even an extension of their living room.38See Sadik-Khan & Solomonow, supra note 28, at 75 (“[Sidewalks] are the front yards for city dwellers, as important as any suburban lawn.”). Residents use sidewalks for leisure, for dog-walking, and for exercise—walking or jogging (or skateboarding or cycling, sometimes unlawfully) without a destination.39For more on the social history of sidewalk “promenading,” see Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 39–44. Cycling on sidewalks is unlawful for adults in a number of places. See, e.g., N.Y.C., N.Y., Admin. Code § 19-176 (2023); Denver, Colo., Mun. Code § 54-576 (2023); Ithaca, N.Y., Mun. Code § 137-1 (2023). But see Cleveland, Ohio, Code of Ordinances § 473.09(a) (2023) (only prohibiting sidewalk cycling in business districts). Particularly in urban areas where many residents lack yards or other outdoor spaces of their own, sidewalks also serve an important function as a space for friends and neighbors to chit-chat.40See Jacobs, supra note 15, at 56–73 (discussing importance of “sidewalk contacts,” “the small change from which a city’s wealth of public life may grow”). Sidewalks are a place for children to play, draw with sidewalk chalk, sell lemonade, or learn to ride a tricycle,41Prohibitions on sidewalk cycling tend not to apply to children. See, e.g., 34 R. of the City of N.Y. § 4-07(c)(3)(i) (2023); Ithaca, N.Y., Mun. Code § 137-1 (2023). and they are places for older residents who might be relatively less mobile to sit outside and get fresh air. And sidewalks can be a source of trees, shade, quality air, and stormwater absorption for residents of urban areas without other abundant greenery.42See Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 190, 193.

Another set of sidewalk users that falls into this category of residents is people experiencing homelessness. Though such people do not reside in formal homes, they are nonetheless functionally residents of the neighborhood and they are using the sidewalk as an amenity of that neighborhood: a place to rest, recreate, and sleep.43See Ben A. McJunkin, The Negative Right to Shelter, 111 Calif. L. Rev. 127, 190–91 (2023) (“[P]ublic spaces exist to be occupied and homeless individuals are no less a part of the ‘public’ to whom these spaces are dedicated . . . .”). The ways in which municipalities and states regulate homelessness is discussed further below.44See infra Section II.B; see also Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 157–87 (discussing municipal responses to homelessness). For now, however, it is critical to neither overlook the existence of people experiencing homelessness as residents of a neighborhood, nor to discount their contested and often fraught stake in the sidewalk.45See Blomley, supra note 35, at 70 (observing that the law of the sidewalk at best overlooks or at worst targets “the public poor . . . to the extent that they are static, rather than in ordered motion”).

2. Property Owners

The second category of sidewalk users is that of property owners. Of course, residents are often property owners and vice versa, but I mean to distinguish here between the use of sidewalks by people in their capacity as people (as a personal or family space, for example) and the use of sidewalks by people in their capacity as owners of land (as a resource associated with ownership of adjacent real property).46Many if not all of the uses discussed here encompass renters of property as well. But because those renters are doing so by standing in the shoes of their landlords who own the property, I will refer to “owners” for simplicity’s sake. Often, these uses are commercial in nature. For example, a commercial property owner may place advertising like sandwich boards on the sidewalk in front of its property, or it may use a projector mounted on its adjacent building to display a lighted logo on the sidewalk’s surface.47See, e.g., Logo Projection 101: Indoor and Outdoor Advertising with Gobos, Gobo Source Projection Sys. (May 15, 2019), []. But see David W. Dunlap, Whose Bright Idea? It’s the Festival of Logos, N.Y. Times (Dec. 14, 2006), [] (discussing Chase Bank’s use of “projectors to beam commercial messages onto public sidewalks at night” and New York City’s position that such projections are unlawful). For discussion of related questions raised by light projections beamed onto others’ property (as opposed to those beamed onto the sidewalk), see Maureen E. Brady, Property and Projection, 133 Harv. L. Rev. 1143 (2020). Some commercial property owners may display some of their wares on the sidewalk in front of the shop door,48See Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 20; Casado Pérez, Privatizing, supra note 27, at 3; see also Jaques v. Nat’l Exhibit Co., 15 Abb. N. Cas. 250, 251 (N.Y. Sup. Ct. 1884) (evaluating whether a corporation that exhibited advertisements and a puppet show from its second-floor window “so as to be visible to persons . . . on the opposite sidewalk” was a nuisance). or place a bench or coin-operated ride in that space.49See, e.g., N.Y.C., N.Y., Admin. Code § 19-136(j)(2) (2023). Similarly, restaurant, club, shop, and theater owners use sidewalks as spaces for guests to wait for a table or show, sometimes even with stanchions placed for the purpose.50The clothing brand Supreme is often credited with mastering this sort of marketing and helping to birth what the New York Times called “The Cult of the Line.” Ruth La Ferla, The Cult of the Line: It’s Not About the Merch, N.Y. Times (Aug. 3, 2017), [].

A recently salient example of commercial sidewalk use by property owners is as a space for outdoor seating for adjacent cafés, bars, and restaurants. Sidewalk seating has long been a privilege associated with operating such an establishment, but the COVID-19 pandemic necessitated and popularized outdoor dining.51See infra notes 102–104 and accompanying text. Businesses relied on serving customers on the sidewalk and in erstwhile curbside parking spots as some municipalities banned or restricted indoor dining and as many customers became reluctant to partake in indoor dining even where it remained available.52Letter from Mike Whatley, Vice President, Nat’l Rest. Ass’n, to Nan Whaley, President, U.S. Conf. of Mayors (Oct. 19, 2021), [].

Sometimes, these commercial property owners take a step further and form a Business Improvement District (BID). Authorized by state or local law,53See, e.g., Idaho Code § 50-1703A(2) (2018); Or. Rev. Stat. § 223.114(1) et seq. (2021); N.Y.C., N.Y., Admin. Code § 25-401 et seq. these BIDs are quasi-governmental, quasi-private, nonprofit entities that finance and provide services within a defined geographic district.54See Lynn A. Baker, Clayton P. Gillette & David Schleicher, Local Government Law 270–71 (5th ed. 2015). Those services are generally funded through extra taxes or assessments imposed on the businesses within the district by the BID or by the municipality.55See id. Some jurisdictions require that these assessments be imposed on all property owners within the district. See, e.g., Me. Rev. Stat. Ann. tit. 30-A, § 5213 (2011). Among the more common BID services are sidewalk maintenance, beautification, cleaning, trash collection, and the like.56Richard Briffault, A Government for Our Time? Business Improvement Districts and Urban Governance, 99 Colum. L. Rev. 365, 394–401 (1999). BIDs are thus an important piece of the tapestry of sidewalk users and regulators, and they are explored further in Section III.A.

It is not just commercial property owners that use sidewalks as adjuncts of their ownership; residential owners also make significant use of the sidewalk. For example, both sorts of owners use the sidewalk for vehicular entrance to and egress from their property, having created—with municipal permission—a dip in the sidewalk that enables a vehicle to cross it.57See Casado Pérez, Privatizing, supra note 27, at 20; Curb Cuts, N.Y.C. Dep’t of Buildings, []. They therefore also use the sidewalk as an extension of a loading dock or even simply as a space to temporarily idle while loading or unloading passengers or items. Some owners may even be tempted to run electrical cables across the sidewalk in order to charge electric vehicles they have parked at the curb, thus creating an obvious tripping hazard for other users of the space.58See Aaron Goldbeck, @wizzzardtweets, Twitter (Oct. 5, 2022, 8:41 AM), []. Outside of the vehicle context, owners may post signs near the sidewalk purporting to forbid people from allowing their dogs to relieve themselves there,59E.g., Claire Carusillo, Why Can’t My Dog Just Pee on the Tree?, Gawker (Sept. 29, 2022), []. or may claim some of the sidewalk to plant trees—either by requesting that a tree be planted by the municipality or by planting and paying for their own, as discussed further in Section II.B.60See, e.g., Request a Street Tree, N.Y.C. Dep’t of Parks & Recreation, []; Tree Resources for Property Owners, Denver, []. And, especially in New York City, owners use sidewalks to store trash and discarded items so they can be collected by sanitation workers61See, e.g., N.Y.C. Dep’t of Sanitation, A Summary of Sanitation Rules and Regulations 12 (2009), []. or so neighbors can collect them as they pass by.62See, e.g., Ronda Kaysen, How to Stoop to New Heights with These Sidewalk Furniture Hunters, N.Y. Times (Apr. 8, 2022), [].

One final widespread example of residential and commercial property owners’ use of sidewalks is as a site of scaffolding, awnings, stoops, and hatch-like doors that open down to cellars beneath the adjacent buildings. These projections into the public sidewalk are such common uses of the space that they often go unnoticed or unremarked upon until they cause a problem. For example, people have fallen to their deaths through improperly maintained cellar doors.63See, e.g., Ashley Fetters, Is It Safe to Walk Over New York’s Sidewalk Cellar Doors?, Curbed (Jan. 25, 2018, 11:15 AM), []. And in some places, scaffolding stays in place years after its city permits have expired, much to the frustration of residents and pedestrians alike.64See NYC DOB Pressured to Take Action Regarding 15-Year-Old Sidewalk Shed on Upper West Side, CBS N.Y. (July 12, 2021, 11:15 AM), []. Scaffolding is also big business in cities like New York, representing a massive revenue stream derived from the sidewalk for scaffolding manufacturers and installers. See Benjamin Maltz, Scaffolding: Uniquely New York, Medium (Apr. 4, 2022), []. In this sense, scaffolding companies represent nonowner commercial interests that use sidewalks, as discussed in the next Subsection. Some property owners have endeavored to find a silver lining in the scaffolding foisted on them by other property owners and have taken over the underside of the scaffolding for art, faux flowers, and the like.65See Jane Margolies, When Scaffolding Hands Them Lemons, Developers Make Lemon Trees, N.Y. Times (July 12, 2021), []. This, too, is a use of public sidewalk space by adjacent property owners. Relatedly, building construction generally entails the use of at least some of the sidewalk by adjacent property owners. Depending on the project, these owners may even block off access to a portion of the sidewalk altogether during the pendency of the work.66Telephone Interview with Andrew Wiley-Schwartz, Former Assistant Comm’r for Pub. Space, N.Y.C. Dep’t of Transp. (Apr. 5, 2022) [hereinafter Wiley-Schwartz Interview].

3. Nonowner Commercial Interests

A third category of sidewalk users encompasses nonowner commercial interests. I refer here to users that are engaged in commerce on the sidewalk but have no particular legal relationship with the adjacent property.67This sort of “street vending” or “street peddling” “once had a ubiquitous presence on American sidewalks,” until concerns about pedestrian flow and public health, along with anti-immigrant sentiment, led to tighter regulation by the late nineteenth century. Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 128–29. Common examples include food vendors like hot dog and ice cream stands, and seasonal vendors like sellers of Christmas trees.68 Duneier, supra note 28, at 253, 294; Linda Saphan & Kevin Cabrera, Even COVID Can’t Stop New York City’s Sidewalk Christmas Tree Vendors, Fortune (Dec. 24, 2020, 7:00 AM), []. Recently, they have also included pop-up COVID testing tents.69See, e.g., Michelle Andrews, Fake Covid-19 Testing Sites Put Consumers at Risk, CNN (Jan. 18, 2022, 6:21 AM), []. Musicians and performers,70See Casado Pérez, Privatizing, supra note 27, at 51–52 (discussing regulation of busking). film crews,71See, e.g., Chicago Film Office – Permits for Filming, City of Chi., []. and people selling books, magazines, umbrellas, and other wares on tables set up on the sidewalk all fall into this category too,72See Duneier, supra note 28, at 43, 85–97, 136–37 (discussing norms and laws surrounding sidewalk vending). Courts have reached disparate conclusions about the right to engage in vending, especially of written matter. See id. at 142. as do messengers and delivery people riding bicycles or e-bikes (albeit sometimes unlawfully).73Compare, e.g., Tony Hays, Letter to the Editor: Limitations on Bike Riding in San Clemente, Dana Point Times (Feb. 4, 2022), [] (lamenting the danger posed by legal bicycle and e-bike riding on sidewalks), with N.Y.C., N.Y., Admin. Code § 19-176(b) (2023) (prohibiting the riding of bicycles on sidewalks). Many of these lawful uses are regulated by municipalities—a topic taken up in greater depth in Section II.B.

Entrepreneurship and technology have also joined forces in recent years to make new commercial uses of sidewalk space. For example, companies like Lime and Bird rent bicycles and scooters and have been notorious for permitting users to simply abandon rented scooters haphazardly on sidewalks.74See Laura Bliss, What Ends Up on the Sidewalk, Bloomberg: CityLab (Aug. 17, 2018, 12:37 PM), []; Casado Pérez, Privatizing, supra note 27, at 49. Indeed, in response to an influx of scooter rentals from companies like Lime and Bird on the sidewalks, the city of Los Angeles enacted a permitting program through its Department of Transportation that would require those companies to disclose real-time location data for all of their scooters. Sanchez v. L.A. Dep’t of Transp., 39 F.4th 548 (9th Cir. 2022) (upholding ordinance against Fourth Amendment challenge). The fate of scooter rental going forward has been something of a question mark in recent years, see Andrew J. Hawkins, Electric Scooter-Sharing Grinds to a Halt in Response to the COVID-19 Pandemic, Verge (Mar. 20, 2020, 11:13 AM), [], but the business model that uses sidewalk space as a site for commercial ventures persists. Some other startups are working to innovate and expand vending kiosks with battery-powered carts and miniature stationary storefronts on sidewalks.75See Gary Stern, Blank Street Is Aiming to Disrupt the Street Cart Industry in New York City, Forbes, (July 14, 2021, 8:46 AM), []. Even more dramatically, delivery robots have begun to emerge.76See Autonomous Deliveries: Sidewalk Robots Are Already Busy Delivering Groceries, Economist (Feb. 12, 2022), []. Amazon’s Scout,77See Sean Scott, What’s Next for Amazon Scout?, Amazon (Aug. 6, 2019), []. Postmates’ Serve,78See Meet Serve, Postmates, []. and other such services deploy autonomous boxes on wheels to roll down sidewalks to deliver orders.79See Emma Balter, My Quest to Follow Coco, the Food Delivery Robot Braving Houston’s Streets, Hous. Chron. (May 17, 2022), []. A startup called Tortoise has even developed “remote-controlled robot[s]” that can roll down sidewalks toting various foods and other items for people to purchase on the spot.80See Jennifer A. Kingson, The First Remote-Controlled Store on Wheels, Axios (Mar. 16, 2022), []. A number of states have recently enacted laws authorizing these robots to travel on sidewalks, with Pennsylvania and Virginia going as far as deeming them “pedestrians”—albeit pedestrians that weigh up to 550 pounds and travel up to 12 miles per hour—with all of the rights and responsibilities that a pedestrian traveling the sidewalk would have.81See, e.g., Jennifer A. Kingson, Sidewalk Robots Get Legal Rights as “Pedestrians, Axios (Mar. 4, 2021), []; see also 75 Pa. Stat. & Cons. Stat. Ann. § 102 (West 2018 & 2023 Supp.) (defining “pedestrian” and “personal delivery device”); Va. Code Ann. § 46.2-908.1:1 (2022) (defining personal delivery devices).

4. Communities

A fourth category of sidewalk users are communities. At a small scale, communities often use sidewalks to gather together for block parties, festivals, cookouts, and the like.82See, e.g., Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 61. Some of these are officially licensed by a municipality, while others almost certainly are not.83See, e.g., Permit Types: Block Parties, N.Y.C., []. But either way, sidewalks offer a natural space for neighbors to meet and enjoy each other and the physical space they inhabit. And while these gatherings often spill into streets too, that does not undermine their substantial use of the sidewalk.

Communities also engage in larger-scale events. Consider, for example, parades or music festivals that attract an entire city or even tourists from outside the city.84See Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 62–79 (discussing role of parades in identity-formation and identity-claiming). I refer as well to protests, signature-gathering, survey-taking, donation-collecting, and political activism geared towards governments and power centers or linked to causes broader than a specific neighborhood. Here, too, these events often involve use of the streets as well as the sidewalks, and this use of both is one that is deeply rooted in the nation’s history and that has long been understood to be protected by—indeed, at the core of—the First Amendment.85See, e.g., United States v. Grace, 461 U.S. 171, 177 (1983); Hague v. Comm. for Indus. Org., 307 U.S. 496, 515–16 (1939). But blocking vehicular traffic in the streets is often both more dangerous and subject to more significant legal penalties than using sidewalks for speech activities,86See, e.g., 2021 Fla. Laws 62; Fla. Stat. § 316.2045(1)(a)(1) (2023) (prohibiting the “willful[] obstruct[ion] [of] the free, convenient, and normal use of a public street, highway, or road” by “[s]tanding on or remaining in the street, highway, or road”); Dream Defs. v. DeSantis, 553 F. Supp. 3d 1052, 1097–98 (N.D. Fla. 2021) (indicating that this provision might be unconstitutionally overbroad). so sidewalks remain a critical space for protest and activism.87See, e.g., Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 97–121 (discussing history of sidewalk protests); Casado Pérez, Privatizing, supra note 27, at 32–36 (same); Shoked, supra note 30, at 1566–67 (comparing roads and sidewalks as protest sites). Thus, for example, while electioneering is often prohibited within a certain number of feet from the entrance to a polling place, supporters of candidates for office often station themselves on the sidewalk just outside the prohibited zone in order to make final appeals on behalf of their candidates.88Electioneering Prohibitions, NCSL (Apr. 1, 2023), []; see, e.g., Burson v. Freeman, 504 U.S. 191 (1992) (upholding electioneering bans near polling places). Similarly, the sidewalks near healthcare facilities that offer abortion care are often sites of antiabortion protesting—called “counseling” by those engaged in it—though some states have imposed electioneering-style buffer zones around the entrances of those facilities.89See, e.g., Hill v. Colorado, 530 U.S. 703, 708 (2000) (upholding such a Colorado ordinance). Of particular salience in the last few years, sidewalks throughout the country were sites of protests in the summer of 2020 against police violence in the wake of the killings of George Floyd, Breonna Taylor, and many other people of color.90See, e.g., Photos: Columbus Gathered After George Floyd Death in 2020, Columbus Dispatch (Apr. 26, 2021, 7:22 PM), []. And sidewalks were the site of celebrations in November of 2020 when Joe Biden clinched the presidency.91See, e.g., Edgar Sandoval, A Rollicking N.Y.C. Celebration for Biden’s Win, Well into the Night, N.Y. Times (Feb. 10, 2021), []. Sidewalks are not just for Democrats, either; rallies in support of President Trump filled sidewalks too, so much so that meteorologists in Arizona warned Trump supporters not to sit on the sidewalk in the summertime because they could get burned.92See Sean Na, Weather Service: Don’t Sit on Sidewalks if You Attend Any Trump Rallies, Ariz. Republic (Aug. 21, 2017, 7:07 PM), [].

5. Governments and Utilities

A fifth and final category of sidewalk users are governments and utilities. Governments and utilities use sidewalk space for infrastructure related to a number of their services. For example, public transit requires bus stops and subway entrances to be built on sidewalks. And, just as with entrances to shops and restaurants, bus stops entail people waiting and queuing, often in and around sheds or other physical enclosures built for that purpose on the sidewalk. Bike racks and bike-share docks are another type of transit infrastructure that occupies sidewalk space, and in most municipalities, these are established through government programs.93See, e.g., Sadik-Khan & Solomonow, supra note 28, at 191 (discussing sidewalk bike-share docks); Telephone Interview with Janette Sadik-Khan, Former Comm’r, N.Y.C. Dep’t of Transp. (Apr. 1, 2022) [hereinafter Sadik-Khan Interview]. Fire hydrants and trash cans are also placed on sidewalks, which makes sidewalks a significant part of the infrastructure for municipal firefighting and sanitation. Utility boxes, poles for electric and telephone wires, lampposts, signs, wayfinding maps, parking meters, traffic lights, cellphone antenna towers, and telephone booths all likewise occupy sidewalk space and make the sidewalk part of the transit and utility infrastructure.94See Sadik-Khan & Solomonow, supra note 28, at 77 (discussing same); Dodai Stewart, What Are Those Mysterious New Towers Looming Over New York’s Sidewalks?, N.Y. Times (Nov. 6, 2022), []. Electric and telephone cables and pipes for gas and water may also run beneath the sidewalk.95See Wiley-Schwartz Interview, supra note 66. Trees planted by the government may dot the sidewalk.96See, e.g., Salt Lake City Pub. Lands Dep’t, Urban Forestry Services,, [] (noting that all “trees along the road are . . . city trees”); Streets and Sanitation: Tree Planting, City of Chi., [] (“The Bureau of Forestry plants trees along the public right-of-way throughout the City of Chicago.”). And mailboxes owned and operated by the U.S. Postal Service are scattered on sidewalks across the country.

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None of the foregoing is to say that pedestrians—a term that may refer strictly to people walking but that I intend here to also include people who use wheelchairs or other mobility assistance devices97For more on sidewalk accessibility for people using mobility assistance devices, see infra notes 173–179 and accompanying text.—are not an important set of sidewalk users too. But as ubiquitous as pedestrians are on sidewalks, and as much as sidewalks are designed with pedestrians in mind, pedestrians are not remotely the sidewalk’s only constituency.98Cf. Blomley, supra note 17, at 38–56 (discussing municipalities’ pedestrian-focused mindset). It is therefore essential to recognize all of these sidewalk users—to decenter pedestrians and to recognize that their relationship to the sidewalk is largely a byproduct of these other users’ relationships with the sidewalk.

Finally, it is certainly the case that not every sidewalk features all of these categories of users or uses. Sidewalks in city centers are likely to carry nearly all of them every day; sidewalks in less busy urban neighborhoods will have some but not others, or will have more on some days than other days. Sidewalks in suburban communities might only include one or two on most days of the year. But in big cities and small towns alike, sidewalks carry at least the potential for all of these users to engage in all of these uses. And that potential invites conflict which necessitates some form of ordering.

B. Conflicts

With such a wide array of sidewalk users and uses, it should come as no surprise that conflicts between them are inevitable. But these conflicts are far more intricate and extensive than they might appear at a glance. This Section focuses on just a few salient and illustrative examples.

Property owners, residents, and pedestrians share a complicated relationship with respect to the sidewalk. On the one hand, there are valuable synergies: pedestrians use the sidewalk to travel to homes and businesses, residents enjoy the benefit of recreating on sidewalks well-maintained by property owners, and both residential and commercial property owners enjoy the foot traffic of a pleasant neighborhood made more vibrant by pedestrians and residents.

But as much as each cannot thrive without the others, these uses necessarily conflict with one another. Consider owners of adjacent property. Every owner who lawfully puts piles of trash on the sidewalk or displays items for sale or allows customers to queue limits the walking space for pedestrians and makes the sidewalk a less desirable place for residents to spend time. Scaffolding dramatically limits the usability of sidewalk space, leaving less room for residents and pedestrians, while providing benefits to property owners and revenue to scaffolding companies.99See Maltz, supra note 64. Scaffolding also obscures business signage and eliminates daylight, harming the trees beneath and transforming the sidewalk space into a dark and often dank cubby that is unappealing for residents and property owners alike.100Margolies, supra note 65. And scaffolding provides a shelter from the elements for people experiencing homelessness—a benefit for them but, for at least some residents or adjacent owners, a source of irritation or concern.101See infra notes 120–124 and accompanying text. Owners’ curb cuts at least periodically turn every sidewalk into an encounter with vehicle traffic, thus interfering with use by pedestrians, residents, and other property owners. But flip the perspective, and residents who use the sidewalk for casual conversation occupy space that a property owner might want to use for seating or for vehicle access, and residents who walk their dogs on the sidewalk may fail to clean up after them and thus leave the sidewalk a messier and less attractive place for everyone.

The proliferation of outdoor dining is perhaps the most newsworthy owner-based sidewalk conflict of the past few years. In New York City, for example, a vocal minority opposed making outdoor dining programs adopted during the COVID-19 pandemic permanent.102See, e.g., Nicole Hong, What’s the Future of Outdoor Dining in New York?, N.Y. Times (Nov. 17, 2021), []; Julianne Cuba, The People Have Spoken: DOT Study Reveals Vast Support for Outdoor Dining, StreetsBlog: N.Y.C. (Nov. 22, 2021, 2:13 PM), []. And while much of that opposition centers on sheds built in street parking spots rather than on dining tables placed on the sidewalk, complaints from residents span the two and often center around the noise, clutter, and rodents that sidewalk dining tends to attract—and, of course, the people it draws.103See Hong, supra note 102. Moreover, it is sidewalk dining rather than street dining that poses the greatest conflict with pedestrians—especially those who use mobility assistance devices—who must navigate spaces made narrower and more crowded by tables, chairs, and congregating people.104See, e.g., Brittany Renee Mayes & Maria Aguilar, Outdoor Dining Reopened Restaurants for All—but Added to Barriers for Disabled, Wash. Post (July 13, 2021), [].

Nonowner commercial interests—vendors, performers, bicycle and scooter rentals—likewise rely on residents and pedestrians for business while simultaneously coming into conflict with them. For every pedestrian who wants to stop at a hot dog stand or to watch a street performer, there are other pedestrians that want to get to their destination unimpeded by those very same entities. And for every resident that might value the character brought to their neighborhood by vendors and performers, there are others that may find them a nuisance. Bicycle and scooter rentals provide opportunities for mobility to residents and pedestrians alike, but they also obstruct the sidewalk—sometimes, in the case of scooters in particular, quite dangerously.105See supra note 74 and accompanying text. And while some residents might enjoy receiving deliveries from autonomous delivery robots, those robots may pose a threat to the safety of pedestrians and residents alike in their use of the shared sidewalk.106See Mokter Hossain, Self-Driving Robots: A Revolution in the Local Delivery, Cal. Mgmt. Rev. Insights Blog (Apr. 5, 2022), [].

These nonowner commercial interests also conflict with property owners, while often providing less value to them than they do to pedestrians and residents. For many property owners, these interests are nuisances at best and threats to property values at worst.107Racism may also often drive some property owner opposition to some sidewalk vendors. For example, New York City’s Fifth Avenue Merchant Association, once chaired by Donald Trump, complained in 1985 that “Africans” engaged in sidewalk vending hurt the area’s business and image. Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 141. Few owners of residential property likely view a home’s proximity to a sidewalk hot dog stand as a selling point,108Some residential property owners may value these “eyes upon the street” as a sort of lookout for anything amiss. Jacobs, supra note 15, at 35; Duneier, supra note 28, at 43. and while proximity to bike-share docks might be seen as an amenity, many property owners have not welcomed them at the start.109 Sadik-Khan & Solomonow, supra note 28, at 196–97, 261 (discussing initial opposition from adjacent owners giving way to perceptions of Citibike docks as “selling point[s]”). For commercial property owners, concerns might include competition from sidewalk vendors engaged in the same business.110Nicole Stelle Garnett, Mercantilism, American Style, in Hernando de Soto and Property in a Market Economy 139, 143–46, 152 (D. Benjamin Barros ed., 2010) (discussing longstanding and modern conflicts between sidewalk vendors and brick-and-mortar commercial interests and exploring why more recent municipal vending regulation tends to serve owners’ interests); Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 128–38, 141–54 (same); id. at 145 (pointing out that BIDs often oppose street vendors because of “competition”). Few restaurants, for example, would welcome a food cart on the sidewalk just outside. Few bookstores and sellers of magazines welcome vendors engaged in the sale of the same periodicals on the sidewalk.111See Duneier, supra note 28, at 234; Casado Pérez, Privatizing, supra note 27, at 49–51. Short of competition, commercial property owners might find sidewalk performers to alienate customers or make it more difficult for customers to access shopping and restaurants, and they might resent the space lost to bicycle and scooter rentals.112See Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 146 (“For BIDs, there are only two appropriate sidewalk uses: it is a corridor for unobstructed pedestrian circulation and a container for hardscape improvements that enhance the street’s image.”).

Community uses like parades and festivals may offer synergies for some pedestrians and residents (who appreciate or attend the event) and for some property owners and nonowner commercial interests (who find a market for their goods there), but they also may detract from those same groups by creating noise and crowds, occupying space, competing with business, and interfering with ordinary activities. Protests and political activism do the same: while some may value the opportunity to easily engage in or observe speech activity, others are likely to find it a threat to their assorted uses of the sidewalk. Indeed, often the very purpose of protest is to interfere, so it is no surprise that the activity conflicts with the array of other sidewalk users.113See supra note 11 and accompanying text. The so-called “counseling” protests that opponents of abortion engage in near clinics that offer abortion care are a striking example: the use of the sidewalk for political activity clashes dramatically with the property owner’s use (as a safe entrance point to a health care facility) and with the pedestrian’s use (as a safe path to medical care).114See Hill v. Colorado, 530 U.S. 703, 707 (2000).

For their part, government and utility uses support every other category of uses. Residents and property owners benefit from utilities and from firefighting infrastructure like fire hydrants. And along with pedestrians, they benefit from lamp posts, trash cans, crossing signals and traffic lights, public transit, and mailboxes. Even nonowner commercial interests and communities benefit from this same infrastructure. But at the same time, all of these instances of government and utility use of sidewalks take space from every other user. And, if they are poorly maintained by the government or utility, they can endanger other users’ enjoyment of the sidewalks and, in the case of property owners, their own properties.

For example, trees—whether planted by the government or by adjacent property owners—raise a host of their own conflicts. While they are enjoyed by residents, owners, and communities as critical environmental resources, trees also dirty the sidewalk with dropped fruit and leaves.115 Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 193–94; Sarah B. Schindler, Of Backyard Chickens and Front Yard Gardens: The Conflict Between Local Governments and Locavores, 87 Tul. L. Rev. 231, 257 & n.134 (2012) (discussing municipal bans on fruit trees overhanging public ways). Trees even damage the sidewalk with roots that may buckle the pavement, creating a hazard for other users.116See Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 194; Balter, supra note 79 (observing that tree-buckled sidewalks interfere with delivery robots). Trees can also block signage and visibility for commercial property owners and nonowner commercial uses, thus threatening their business interests.117 Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 194. Indeed, sometimes the purpose of planting a tree may be to eliminate space for vendors thought to pose a threat to other sidewalk users.118See Duneier, supra note 28, at 174 (alleging that trees had been planted by a BID “to cut down on space for vendors”). And, if not properly pruned and cared for, trees can suffer damage or die and risk falling into adjacent owners’ buildings or nearby utility lines, or hurting people on the sidewalk.119See, e.g., William Glaberson & Lisa W. Foderaro, Neglected, Rotting Trees Turn Deadly, N.Y. Times (May 13, 2012), [] (discussing injuries and deaths caused by improperly maintained trees in parks and on sidewalks).

Another cross-cutting source of sidewalk conflict has to do with people experiencing homelessness. They may quite literally require spaces like sidewalks in order to exist and to carry out necessary life functions,120Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. Rev. 295, 322 (1991) (“Since the homeless, like us, are real people, they need some real place to be . . . .”). but in doing so they may obstruct pedestrians, particularly those with mobility limitations,121See, e.g., Lysée Mitri, City, County of Sacramento Face New Lawsuit over Homeless Camps, KCRA (Feb. 8, 2023, 8:00 PM), [] (discussing lawsuit filed by residents with mobility limitations alleging that local government has allowed “tent encampments” to block sidewalks). or lead them (rightly or wrongly) to feel unsafe.122See Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning, 105 Yale L.J. 1165, 1177–84, 1246 (1996) (discussing harms to pedestrians and framing sidewalks as unruly spaces and sites of nuisance in need of policing and control); McJunkin, supra note 43, at 197–98 (acknowledging these externalities). They may also interfere with government and utilities’ use of the sidewalk by occupying spaces like bus stops, subway entrances, benches, telephone booths, and the like. Further, while some residents and owners might appreciate or not mind the presence of such people on sidewalks,123See, e.g., Duneier, supra note 28, at 79 (contending that many residents “appreciate having [unhoused vendors] on the sidewalk”). others may feel that people experiencing homelessness interfere with their varied uses of the sidewalk—whether by harassing customers, diners, celebrants, or people in conversation, or by simply existing and making others feel unsafe or uncomfortable (again, perhaps for reasons either unfair or worse).124See Jamelia N. Morgan, Policing Marginality in Public Space, 81 Ohio St. L.J. 1045, 1053–55 (2020) (“[P]ublic spaces are not open and accessible to all, in both a normative and literal sense. Stated differently, the imagined ‘community’ has never included all members that reside within a given community.”). Those who work as vendors on the sidewalk may, as noted above, compete with the businesses operated by adjacent property owners—and vice versa—which is a significant part of why commercial property owners seek to root out such vendors.125See Duneier, supra note 28, at 231–35 (reporting an interview in which an attorney for two BIDs argues that “there is an element of unfairness with people who are renting stores and are selling merchandise and are paying taxes and minimum wage and rent”); Ben A. McJunkin, Homelessness, Indignity, and the Promise of Mandatory Citations for Urban Camping, 52 Ariz. St. L.J. 955, 971 (2020) (“[L]ocal business[es] have frequently been at the forefront of movements to criminalize and arrest those experiencing homelessness.”). At the same time, vending is certainly of great value to the vendors themselves. Some even argue that, as a means of self-support, vending might “help [people experiencing homelessness] to stabilize their lives” and thus address the other ways in which their uses might conflict with those of others.126 Duneier, supra note 28, at 171; see id. at 172 (arguing that “eliminating vending and scavenging might result in more theft”).

Finally, there can of course be conflict within groups of sidewalk users too. Adjacent property owners may vie for space for dining, for queuing customers, for displays, and the like. Or, for example, one property owner’s sidewalk bar may conflict with the outdoor seating for the quieter, upscale restaurant next door. Conflict abounds between nonowner commercial interests like vendors, who compete fiercely for prime sidewalk space.127Id. at 85–88, 239–52 (discussing vendors’ norms and conflicts with respect to sidewalk space). Protests and counter-protests seek space on sidewalks as part of their respective expressive functions.128See, e.g., Natalie Miller, UI, Iowa City Groups Respond to Proposed State Abortion Legislation, Daily Iowan (Feb. 26, 2023), []. And residents and pedestrians alike compete with one another for sidewalk space.

Indeed, sidewalks have served as microcosms of broader social and civil rights battles throughout American history. So-called “respectable” women were long expected not to walk the sidewalks unescorted lest they be ogled and insulted by male pedestrians or perceived as sex workers.129 Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 90. But as women entered the workforce and used public sidewalks more freely, those sidewalks became a space for feminist empowerment and social change.130See id. at 90–92. Even so, many women continue to be made to feel unsafe by male sidewalk users who harass or seek to harm them.131See, e.g., Shagun Sethi & Juliana Vélez-Duque, Walk With Women 16 (2021), [] (reporting survey findings indicating 70 percent of women “never,” “very rarely,” or “occasionally” feel safe while walking alone, as compared to about 20 percent of men, and finding that 70 percent of women “always,” “very frequently,” or “occasionally” avoid walking on city sidewalks “because of fear,” as compared to about 30 percent of men). The record is perhaps even starker when it comes to race. White residents and pedestrians historically “used the distinctions between the sidewalk and the gutter or the roadway to enforce social status,” relegating Black residents and pedestrians to the less clean and more dangerous gutter and roadway.132 Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 87. They did this both by social convention,133See id. at 88. and, in some Southern cities, under laws that expressly forbade Black people from “stand[ing] on a sidewalk to the inconvenience of [white] persons passing by” and which required Black pedestrians to yield at all times to white pedestrians.134Id. at 87 (citing Richard Wade, Slavery in the Cities: The South 1820–1860, at 108 (1964)). In 1883, a dispute over racial dominance among passing pedestrians on a sidewalk in Danville, Virginia even came to blows and ultimately “escalated into a massacre when a white mob shot into a crowd of unarmed [B]lack men, women, and children.”135Jane Dailey, Deference and Violence in the Postbellum Urban South: Manners and Massacres in Danville, Virginia, 63 J.S. Hist. 553, 556 (1997).

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In ways ranging from the exceptionally fraught to the mundane, sidewalks have long been and remain sites of contestation and conflict to an extent largely unparalleled in any other municipal space. And yet, the law has not effectively caught up to this reality. Until it does, these conflicts will only continue to threaten the utility and the equitable accessibility of this centrally important space.

II. Sidewalk Law

Ordinarily, when we are faced with this sort of conflict in the use of space, we tend to resolve or manage it with the help of property law, public regulation, custom and norms, or some mix of all three. Consider as a rough metaphor the oft-invoked “tragedy of the commons.”136Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (1968). Some, including Hardin himself, have deployed Hardin’s work in support of a number of odious causes from which I firmly distance myself. See Gregory M. Stein, Environmental Justice and the Tragedy of the Commons, 13 Calif. L. Rev. Online 10, 11–12 (2022). Like Professor Stein, I refer to the “tragedy of the commons” here only because the “basic thesis has had considerable influence on the academic literature.” Id. And, even at that, I offer it here only as a simple reference point for thinking about the problems of and potential solutions for shared space. In its classic formulation, goods or lands of finite consumability (“rivalrous” in economic terms) that are open to all (“nonexcludable”) will tend to be overused and depleted.137These are often called, to borrow Elinor Ostrom’s phrase, “common-pool resource[s].” Elinor Ostrom, Governing the Commons 30 (1990). The traditional solution is the introduction of private property rights and, with them, the right of the owner to exclude others altogether or to manage others—for example, by charging a fee for entry, by imposing rules, or by otherwise compelling users to maintain the shared resource.138See Barton H. Thompson, Jr., Tragically Difficult: The Obstacles to Governing the Commons, 30 Env’t L. 241, 243–44 (2000); Harold Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. Papers & Proc. 347, 348­–49 (1967). Private property rights also trigger the protection of the common law of nuisance and the principle that “one should use one’s own property in such a way as not to injure the property of another.” See Jesse Dukeminier et al., Property 739 (10th ed. 2022). Another solution is for government to impose regulations and rules that govern the use of the resource and that are designed to prevent uses that harm others’ consumption or that harm the resource itself.139See Ostrom, supra note 137, at 8–11; Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev. 711, 719–20 (1986). And a third possibility, promoted by scholars like Elinor Ostrom and Carol Rose, is that informal social norms may suffice to govern the use of the resource.140See Ostrom, supra note 137, at 53–55; Rose, supra note 139; see also Garnett, supra note 110, at 151 (discussing role of norms in regulating vendors and marketplaces); Duneier, supra note 28, at 43, 85–97 (same).

But while custom and norms might suffice in smaller neighborhoods, in many if not most municipalities, the communities are too vast and insufficiently close-knit for custom to effectively govern the space at scale. As Professor Ostrom herself has explained, custom is most promising as a means of resolving commons problems in spaces where users share similar stakes, face low enforcement costs, exhibit high degrees of reciprocity and trust, and make up a small, stable, and relatively homogenous group.141 Ostrom, supra note 137, at 211; see Amy Sinden, The Tragedy of the Commons and the Myth of a Private Property Solution, 78 U. Colo. L. Rev. 533, 548 (2007). As the foregoing discussion in Part I demonstrates, most sidewalks are not such spaces. We are thus left with property law and public regulation. But as both currently stand, neither is up to the task. In fact, both risk adding to the tension and deepening rather than resolving the conflicts that risk jeopardizing the quality and accessibility of the sidewalks.

A. Property Owners

Strictly speaking, in some municipalities, sidewalks are at least presumptively public property—existing by definition beyond the edge of the property lines of the adjacent lots.142See, e.g., Neb. Rev. Stat. § 60-662 (2022) (defining sidewalk as the space between the curb line “and the adjacent property lines”); Colo. Rev. Stat. § 24-10-103(6) (2022); Nev. Rev. Stat. § 484A.240 (2023); W. Va. Code Ann. § 17C-1-38 (2021); Mich. Comp. Laws Ann. § 257.60 (West 2021); N.Y.C., N.Y., Admin. Code § 19-101(d) (2023). In others, even though the adjacent property owner’s lot line may extend into the sidewalk and indeed into the street as well, the public owns an easement over that land—the right to access and use it in all of the ways discussed in Part I.143See, e.g., Cal. Civ. Code § 831 (West 2023) (“An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown.”); Idaho Code § 55-309 (2021); N.D. Cent. Code § 47-01-16 (2014); Okla Stat. Ann. tit. 69, § 1202 (2023); see also Richards v. County of Colusa, 16 Cal. Rptr. 232, 234 (1961) (“Ordinarily, under the principles of common law dedication the public takes nothing but an easement for a public use, the title to the underlying fee remaining in the original owner and passing to the successors in ownership of the abutting land.”). Either way, nobody is endowed with the property right to exclude people from the sidewalk or to manage its use. But worse, the ways that that ownership actually manifests on the street—whether the public owns fee title or an easement—blur the line between public and private, distort accountability for the maintenance of the space, and tend to accentuate the conflict among uses and users.

Because of the long influence of pedestrianism and its association of sidewalks with the transportation of people, sidewalks were originally understood as benefiting the adjacent lots—the places from which people would leave or to which people would travel—rather than as benefiting the general public.144See Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 18–19. Construction of the earliest sidewalks was, therefore, paid for by the adjacent property owners and often begun at the request of those owners.145Id. It was only in the 1900s that municipalities began to pay for sidewalk construction, and yet again, pedestrianism reigned: municipalities approached that mission with the purpose of achieving smooth pedestrian mobility.146See id. at 20–21.

But even as many municipalities took responsibility for the creation and ownership of sidewalks, the owners of adjacent lots were left with numerous responsibilities for those sidewalks.147See id. at 29 (“The courts . . . established the sidewalks as public spaces, even while adjacent property owners were required to maintain them . . . .”). Indeed, perhaps counterintuitively, even where adjacent lot owners do own fee title to the sidewalk, the existence of the public easement would ordinarily place the responsibilities of maintaining those sidewalks on the public. This is because, under the common law of property, the obligation to maintain an easement generally rests with the person who has the right of access, not with the person who owns title to the underlying land.148In property law terms, it is not generally the obligation of the owner of the servient estate to maintain the easement, but rather the obligation of the owner of the dominant estate or the easement in gross. See, e.g., Sutera v. Go Jokir, Inc., 86 F.3d 298, 302 (2d Cir. 1996) (“As a corollary to the rule that an easement imposes no affirmative duty on the servient owner, it developed that the duty to maintain and repair structures or facilities existing under an easement rests on the dominant, not the servient, owner.”); Herzog v. Grosso, 259 P.2d 429, 435 (Cal. 1953) (“Ordinarily, the owner of the servient tenement is under no duty to maintain or repair the easement.”); 28A C.J.S. Easements § 227 (2023). It therefore does not matter whether sidewalks are public land or whether they are private land bearing a public easement. Either way, basic property law principles would neither impose obligations on adjacent property owners (beyond an obligation to refrain from obstructing the public’s access) nor offer those owners any particular powers of exclusion with respect to the space.149See Casado Pérez, Reclaiming, supra note 27, at 2203 (“No matter whether the city owns the sidewalk or the public has a right of way, the property owner has a role to play, as they may be responsible for construction and upkeep of sidewalks.”). New York City makes this quite plain, counseling property owners that their obligations with respect to the sidewalk exist “regardless of where property lines fall.” Sidewalk Usage Guide, N.Y.C. Business, []. And yet, contrary to these property law principles, municipal laws across the country provide that adjacent property owners do bear sidewalk responsibilities akin to those an ordinary private landowner would have and do enjoy at least some of the some sidewalk privileges an ordinary private landowner might have—but not all of them.150These responsibilities generally end at the curb. See, e.g., Fernandez v. 2265 E. Tremont Realty, LLC, 132 N.Y.S.3d 617, 617 (App. Div. 2020). So while the street itself also carries multiple users and uses and features some conflict between them—curbside parking spaces and dining sheds, bike lanes, and so on—adjacent owners’ responsibilities, and the regulatory fragmentation discussed in Section II.B, are limited to the sidewalk.

One such responsibility is keeping the sidewalks clear. So, whenever snow accumulates above a specified amount, most municipalities—large and small, across the country—obligate each owner of adjacent property to clear the portion of the sidewalk in front of their lot within a specified amount of time or else face financial penalties.151See, e.g., Billings, Mont., Code of Ordinances § 22-406 (2023); Cambridge, Mass., Code of Ordinances § 12.16.110 (2023); Chi., Ill., Mun. Code § 10-8-180 (2023); Flagstaff, Ariz., City Code § 8-03-001-0004 (2023); Iowa City, Iowa, City Code § 16-1A-8 (2023); Lexington, Ky., Code of Ordinances § 17-31; N.Y.C., N.Y., Admin. Code § 16-123 (2023); Portland, Me., Code of Ordinances § 25-173; St. Louis, Mo., Code of Ordinances § 11.18.210. These are not new obligations, either: as early as 1833, the city of Boston required adjacent property owners to remove snow from the sidewalk or else face a fine “not less than one dollar, and not more than four dollars, for each and every day” the snow remained unshoveled.152In re Goddard, 33 Mass. (16 Pick.) 504, 505 (1835) (upholding ordinance); see also Kansas City v. Holmes, 202 S.W. 392 (Mo. 1918) (same). In smaller communities, the clearing of sidewalk snow may be an example of a problem that could be realistically resolved by custom and norms, along the lines of Elinor Ostrom’s work. See Päivi Rannila & Don Mitchell, Syracuse, Sidewalks, and Snow: The Slippery Realities of Public Space, 37 Urb. Geography 1070, 1080 (2016); supra notes 140–141. For the reasons discussed above, however, custom is unlikely to be effective in larger and more heterogeneous communities. See Ranilla & Mitchell, supra, at 1083 (acknowledging the “relational” nature of custom). Even in places that do not see snow, it remains the obligation of adjacent property owners to keep the portion of the public sidewalk in front of their lot “clear of obstructions.”153Anastasia Loukaitou-Sideris, Evelyn Blumenberg & Renia Ehrenfeucht, Sidewalk Democracy: Municipalities and the Regulation of Public Space, in Regulating Place: Standards and the Shaping of Urban America 141, 147 (Eran Ben-Joseph & Terry S. Szold eds., 2005). Indeed, the language of some ordinances does not differentiate between obstructions created by the adjacent property owner and obstructions created by others: clearing both remains the obligation of the adjacent property owner.154See, e.g., Durham, N.C., Code of Ordinances § 62-8 (2022); L.A., Cal., Mun. Code § 56.08(c), (d); Tempe, Ariz., City Code § 29-2.

Another important set of specific obligations that adjacent property owners bear with respect to public sidewalks has to do with trees. As noted above, even when the government plants sidewalk trees, it is often the responsibility of adjacent property owners to request that those trees be planted.155See supra note 60 and accompanying text. This is one area where differentiating owners and renters is important. Cf. supra note 46. In some jurisdictions, only owners (not renters) can request trees to be planted. Sarah Schindler & Kellen Zale, The Anti-Tenancy Doctrine, 171 U. Pa. L. Rev. 267, 282 (2023). Moreover, once they are planted, some of the maintenance of those trees may fall on adjacent property owners rather than on the municipality.156See, e.g., Cupertino, Cal., Mun. Code § 14.12.070(B) (2023); Portland, Or., City Code § 11.60.060(A)(2), (F) (2020); Salt Lake City, Utah, Code of Ordinances § 2.26.190 (2022); Right of Way Maintenance (Sidewalks, Streets and Alleys), City of Austin, []; Street Trees, City of Ankeny, []. Indeed, cities ranging from Lawrence, Kansas to Los Angeles, California to Hoboken, New Jersey require that adjacent property owners commit to watering a tree before the city will issue a permit allowing a tree to be planted.157 Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 216; see Lawrence, Kan., City Code § 18-104; Residents Invited to Request Street Trees, City of Hoboken (Jan. 14, 2019), []. And when those trees’ roots cause the sidewalk terrain to buckle, it can be the responsibility of adjacent property owners to repair the sidewalk.158See, e.g., Psichos v. Sauvion, 520 A.2d 945, 946 (Pa. Commw. Ct. 1987); FAQs, City of Watsonville, []; Dakota Smith, City of LA to Repair Sidewalks for Now, but It’s on Property Owners in the Future, L.A. Daily News (Aug. 28, 2017, 6:18 AM), []. New York City law is similar, but the city maintains that it “no longer” imposes liens on owner-occupied one-, two-, or three-family homes where sidewalk damage is “caused only by City trees.” Sidewalk Repair, N.Y.C. Dep’t of Parks & Recreation, []. On top of the ways in which this allocation of responsibility places public costs onto private shoulders, one particularly troubling result of this arrangement is that lower-income neighborhoods end up with fewer trees than wealthier neighborhoods,159 Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 203, 206 (“More people from wealthy neighborhoods participate in these programs [to maintain sidewalk trees] than those from low-income areas.”). Another reason why low-income neighborhoods or areas with a large proportion of people of color tend to have fewer sidewalk trees is that wealthier, whiter areas have long been accorded greater political capital and have thus been able to secure more municipal resources. See Brian F. Schaffner, Jesse H. Rhodes & Raymond J. La Raja, Hometown Inequality 13–17 (2020). which leads to less shade, less clean air, less attractive blocks, and less healthy communities.160See Anne Barnard, Corey Kilgannon, Jazmine Hughes & Emma Goldberg, It’s Going to Be a Hot Summer. It Will Be Hotter if You’re Not Rich, N.Y. Times (May 28, 2022), [] (focusing on health benefits of sidewalk trees); supra note 42 and accompanying text.

More generally, municipalities often place on adjacent property owners a broad duty to maintain the public sidewalk in good repair.161See, e.g., Ann Arbor, Mich., Code of Ordinances § 4:2(4) (2023); Austin, Tex., Code of Ordinances § 10-5-21(A) (2023); Charlottesville, Va., Code of Ordinances § 28-24(b) (2023); Minneapolis, Minn., Code of Ordinances § 427.90 (2020); Pittsburgh, Pa., Code of Ordinances § 417.02 (2023); Seattle, Wash., Mun. Code § 15.72.010 (2023); see also Xiang Fu He v. Troon Mgmt., Inc., 137 N.E.3d 469, 475 (N.Y. 2019) (holding that a landlord bears primary responsibility even if a lease purports to delegate this responsibility to tenants). But see Mays v. Gamarnick, 93 N.E.2d 236, 237 (Mass. 1950) (determining that there is no common law obligation to repair adjacent public sidewalk made unsafe by third parties). In many cities, this duty even includes installing, repaving, and repairing the sidewalk concrete itself—“at [the adjacent owner’s] own cost and expense” and to whatever specifications the city may set—in the case of cracks, loose pavement, trip hazards, or other defects.162 N.Y.C., N.Y., Admin. Code § 19-152(a), (b) (2018); see also Atlanta, Ga., Code of Ordinances § 138-14(d) (2023); Balt., Md., Code of Ordinances § 18-3-304(b) (2021); St. Louis, Mo., Code of Ordinances § 20.26.010 (2023); Tampa, Fla., Code of Ordinances § 22-12 (2023). Some municipalities split the cost evenly between the municipality and the adjacent property owner. See, e.g., New Haven, Conn., Code of Ordinances § 27-104(a) (2023). If an adjacent owner fails to do this repair work within a specified period of time, the city will often do the work itself and bill the owner for it; nonpayment of that debt constitutes a lien on the adjacent property.163See, e.g., Balt., Md., Code of Ordinances § 18-3-304(e) (2023); Omaha, Neb., Mun. Code § 26-43 (2023); N.Y.C., N.Y., Admin. Code § 19-152(e), (i) (2023); St. Louis, Mo., Code of Ordinances § 20.26.030 (2023). In New York City, this lien enjoys priority over all other liens and encumbrances besides taxes. N.Y.C., N.Y., Admin. Code § 19-152(e) (2018). These costs can pile up into the thousands of dollars,164See Rannila & Mitchell, supra note 152, at 1077 (observing that “typical bills” in Syracuse, New York are somewhere “between ,000 and ,000”); Teghan Simonton, City Struggles to Address Sidewalk Repairs, Columbia Missourian (May 18, 2022), [] (quoting a homeowner concerned about a ,000 bill saying, “How in the world will we have money and attention to pay for the sidewalk outside of the house?”). and an owner’s failure to pay their sidewalk repair bill could result in foreclosure of their property.165 N.Y.C., N.Y., Admin. Code § 19-152(k) (2018). In addition to the burden on the property owner, there is an issue of equity here too: naturally, communities with less wealth have less money to spare for these repairs, so the quality of the sidewalks in those communities declines.166See, e.g., Mozhgon Rajaee et al., Socioeconomic and Racial Disparities of Sidewalk Quality in a Traditional Rust Belt City, SSM-Population Health, Dec. 2021, at 6 (finding that “[b]lock groups with lower SES indicators . . . and a greater proportion of racial and ethnic minorities generally had significantly worse overall sidewalk quality,” and attributing at least some of that finding to the fact that sidewalk maintenance costs are borne by property owners); David Zipper, The High Cost of Bad Sidewalks, Bloomberg (June 16, 2020, 2:38 PM), [] (similarly attributing disparities in sidewalk quality, at least in part, to issues of owner funding); Casado Pérez, supra note 25 (similarly underscoring the role of private obligation in sidewalk inequality). Again, other reasons for these disparities include disparities in political power, see supra note 159, but the fact of owner obligations reinforces those dynamics.

In most jurisdictions, these sorts of fines and liens are the extent of the consequences for an adjacent owner who fails to meet their obligations. That is, in most jurisdictions, municipal law does not go as far as imposing tort liability on adjacent owners for injuries occurring on sidewalks.167See, e.g., Nash v. Lerner, 724 A.2d 798 (N.J. 1999) (holding that residential landowners owe no tort duty to maintain adjacent sidewalks); Hayden v. Curley, 169 A.2d 809, 813 (N.J. 1961); Schupbach v. City of Sarasota, 765 So.2d 131, 132 (Fla. Dist. Ct. App. 2000); Lopatkovich v. City of Tiffin, 503 N.E.2d 154, 157 (Ohio 1986); Robinson v. Cianfarani, 107 A.3d 375, 379 (Conn. 2014). But see Stewart v. 104 Wallace Street, Inc., 432 A.2d 881, 883 (N.J. 1981) (holding that commercial landowners are liable for sidewalk injuries when the landowner has negligently failed “to maintain the sidewalk in reasonably good condition”). But a few jurisdictions do exactly that.168See, e.g., Psichos v. Sauvion, 520 A.2d 945, 947 (Pa. Commw. Ct. 1987) (finding adjacent owner liable for injuries caused by sidewalk made unstable by tree roots). Some have for over a century,169See, e.g., Mintzer v. Hogg, 43 A. 465, 466 (Pa. 1899) (“It is the primary duty of property owners along a street to keep in proper repair the sidewalk in front of their respective properties.”); Morton v. Smith, 4 N.W. 330, 330 (Wis. 1880). while others have more recently made that turn. In 2003, for example, New York City made adjacent property owners liable in tort for injuries occurring on sidewalks that are proximately caused by “the failure of such owner to maintain such sidewalk in a reasonably safe condition.”170 N.Y.C., N.Y., Admin. Code § 7-210(b) (codifying Local Law 49 of 2003). Property owners are also required to purchase insurance to cover this liability. Id. § 7-211. These two provisions do not apply to adjacent owners of owner-occupied one-, two-, or three-family residential property. Id. § 7-210(b). New York City even expressly exempts itself from such liability.171Id. § 7-210(c). This bears underscoring: when it comes to New York City sidewalks, adjacent property owners may be liable for injuries occurring on land they neither own nor control, to the exclusion of any duty on the municipality that may actually own the public property in question.172See Hausser v. Giunta, 669 N.E.2d 470, 472 (N.Y. 1996) (holding that municipalities in New York may transfer liability for unsafe sidewalks to adjacent property owners).

The one context in which municipalities do often maintain legal responsibility and liability is compliance with laws having to do with accessibility. Sidewalks present a number of challenges for people with mobility limitations.173See generally U.S. Dep’t of Transp., Fed. Highway Admin., Accessible Sidewalks and Street Crossings—An Informational Guide, []. Chief among the laws aimed at remedying these challenges is the Americans with Disabilities Act (ADA), which prohibits discrimination in the provision of “the services, programs, or activities of a public entity” on the basis of disability status.17442 U.S.C. § 12132; see also 29 U.S.C. § 794. But “no matter who builds a sidewalk and without regard to its location in a town, city, county, or state right-of-way, the obligation to keep the sidewalk accessible within the ADA falls upon the local jurisdiction of the community in which it is located.”175Robin Paul Malloy, Sarah Spencer & Shannon Crane, Land Use Law and Sidewalk Requirements Under the Americans with Disabilities Act, 51 Real Prop. Trust & Est. L.J. 403, 408 (2017). So, for example, the regulations promulgated to implement the ADA impose on states and municipalities the obligation to develop a plan to provide curb cuts in existing sidewalks and to ensure that new sidewalks are constructed with curb cuts in place.17628 C.F.R. §§ 35.150(d)(2), 35.151(i) (2022). Accordingly, a number of municipalities have faced lawsuits filed by people who use mobility assistance devices alleging a range of deficiencies in sidewalk conditions.177See, e.g., Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011); Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993); Willits v. City of Los Angeles, 925 F. Supp. 2d 1089 (C.D. Cal. 2013).

But in spite of laws like the ADA, municipalities still find ways to push many of these obligations back onto property owners. Some of the greatest threats to accessibility are uneven pavement and uncleared snow, ice, treefall, and general debris—the responsibility for which falls on municipalities under the ADA, but which municipalities in turn have placed in the hands of adjacent property owners, as just discussed.178Malloy et al., supra note 175, at 414–18. And when those property owners are ineffective or slow to meet their obligations, the consequence can be an accessibility crisis for which there is little recourse or accountability. Indeed, even when ADA plaintiffs prevail, actual remedies on the ground have proven slow in coming, in large part because municipalities claim to lack the money or resources to make all of their sidewalks accessible.179See Donald Shoup, A Faster Path to Safer Sidewalks, Bloomberg (Jan. 10, 2022, 12:58 PM), [].

The logic behind all of these owner responsibilities for sidewalks is that they make life easier for municipal governments. As early as 1887, the New York Court of Appeals contended that municipalities should not be expected to employ people to take care of sidewalks because such caretaking “may be effected more swifty [sic] and easily by imposing that duty upon the citizens.”180Taylor v. City of Yonkers, 11 N.E. 642, 642 (N.Y. 1887). As Professor Larissa Katz has explained with the example of snow removal, “coupling [these] duties with private ownership immediately provides the city with an army of snow shovelers, who are in place before any snow falls.”181Larissa Katz, Governing Through Owners: How and Why Formal Private Property Rights Enhance State Power, 160 U. Pa. L. Rev. 2029, 2051 (2012). The consequence is that property ownership becomes, in Katz’s words, “a sometimes dangerously convenient mechanism for the state to offload some of the burdens of government onto the shoulders of individuals.”182Id. at 2035.

The reality that the city’s own convenience is ultimately the fundamental attraction is made clear by the fact that merely owning adjacent land and being near the sidewalk does not necessarily make one a good sidewalk caretaker. And it certainly does not provide or entail the rights, powers, and capacities necessary to carry out those responsibilities.183Id. at 2044 (observing that ownership of adjacent land “is not purpose-built to convey governmental responsibilities”). For example, while many property owners in suburban communities may find it easy to clear snow from the sidewalk in the course of shoveling their own driveways, property owners in urban communities would not otherwise have the occasion to engage in much snow shoveling at all but for their responsibility for the sidewalk. And even in suburban communities, property owners who are older or who have disabilities are not well-suited to shoveling snow. Moreover, these obligations are hardly limited to snow. Happening to own property does not necessarily mean that one has the financial resources, for example, to tend trees or to repair sidewalk damage one had no hand in causing. The efficiency logic that might justify owner obligations for snow in some communities runs out when the issue is instead cracked and unsafe concrete.

As noted above, this outsourcing of governmental responsibility is one important reason why the quality of sidewalks is unequally distributed across municipalities: it takes what should be public services provided equally to all and turns them into private services contingent on one’s community’s ability to provide them.184See supra notes 155–160 and accompanying text; see also Casado Pérez, Reclaiming, supra note 27, at 2208; Rannila & Mitchell, supra note 152, at 1081. After all, insofar as the sticking point is that municipalities likewise lack the resources to do these jobs effectively, that problem could be solved by funding municipalities more or by reallocating municipal funding priorities.185See infra Section III.B. Instead, we compel individuals to devote their own private resources to these tasks. Moreover, this assignment of responsibility tangles the lines of public oversight and accountability. Adjacent property owners are not subject to the will of the voters, while those who are so subject can shirk responsibility for shortcomings in these public services by claiming—correctly, in fact—that those services are not their job to provide.186See Katz, supra note 181, at 2053 (“From the viewpoint of egalitarian liberalism, holding owners responsible for core state functions is problematic because it pushes private actors into ‘public’ roles, without the oversight or public law constraints that apply when government employees do the job.”).

Nearly nowhere else in the realm of public property have we made this choice. Consider the public roads. Maintenance and cleaning of those public roads is the responsibility of the municipality itself.187E.g., N.Y.C., N.Y., Admin. Code § 16-124 (2023) (“The commissioner [of the Department of Sanitation], immediately after every snowfall or the formation of ice on the streets, shall forthwith cause the removal of the same, and shall keep all streets clean and free from obstruction.”); Snow and Ice Removal, Hennepin County, Minn., [] (noting that the county, state, or city is responsible for removing snow and ice from roads); Snow & Ice Management, Billings Public Works, [] (setting out the city’s responsibility and procedures for maintaining roads during winter weather); Winter Snow Clearing, City of Chi., [] (explaining that the Department of Streets and Sanitation’s “Snow Command” “is responsible for maintaining winter roadway safety on a route system of more than 9,400 lane miles”). It is difficult to imagine a modern municipality, particularly a big city, instead requiring adjacent owners to clear snow from—or, better yet, repave—the part of the street directly in front of their property on the basis that they happen to live near the problem.188See, e.g., Halbach v. Normandy Real Estate Partners, 63 N.E.3d 388, 393 (Mass. App. Ct. 2016) (Milkey, J., concurring) (“A highway is an unmistakably public space that is subject to the sole control of the public entities with jurisdiction over it. Indeed, a private party who exercised self-help to improve a public street would be far more likely to face arrest than municipal expressions of gratitude.”); Olivia Olander, Petition Asking City To Clear Sidewalks of Snow and Ice Gains Traction, Chi. Trib. (Jan. 26, 2022, 4:04 PM), [] (quoting a transportation policy analyst saying, “We don’t assume that the adjacent property owners are going to go out with their shovels and take care of the streets . . . . Why did we decide the sidewalk should be treated differently?”). But see Maureen E. Brady, The Failure of America’s First City Plan, 46 Urb. Law. 507, 519 (2014) (observing that in the seventeenth and early eighteenth centuries, the colonial city of New Haven, Connecticut required men to assist in clearing the “stinking weede” from the roads). Public parks need maintaining too, and yet we generally do not require those who live near them to take turns mowing the grass or picking up trash, even if such an arrangement would be “easier” for government.189Cf. Taylor v. City of Yonkers, 11 N.E. 642, 642 (N.Y. 1887). To be sure, there certainly could be local conditions under which a community might conclude, for example, that owners shoveling sidewalks is an efficient and appropriate way to get the job done—just as it might conclude, for that matter, that nearby owners tending to parks makes sense in light of that community’s circumstances. But the ubiquity of this outsourcing across jurisdictions both urban and suburban, as illustrated throughout the preceding pages, suggests that it is not the result of community-sensitive choice. And in any event, no matter how understandable such a choice may be, it carries significant consequences for accessibility, accountability, equity, and the full cast of sidewalk users—consequences which are too rarely carefully considered.190In 1898, the New Hampshire Supreme Court found the city of Concord’s sidewalk snow removal ordinance “in direct violation of the principle of equality which pervades the entire [state] constitution,” calling it “extortion and inequality, pure and simple” and pointing out the incongruity of sidewalk responsibilities alongside the appropriate absence of responsibility for the streets and other public spaces. State v. Jackman, 41 A. 347, 347–49 (N.H. 1898); cf. Nicholas Blomley, Colored Rabbits, Dangerous Trees, and Public Sitting: Sidewalks, Police, and the City, 33 Urb. Geography 917, 918 (2012) (“That owners are compelled to work to keep the City’s sidewalks clear of snow and ‘icy ridges’ would appear to be a form of enforced servitude . . . .”).

Thus far, the discussion has focused on owner-like burdens, but the same problems arise when considering the benefits that adjacent property owners receive with respect to the sidewalk. Perhaps the most valuable of the privileges of ownership are the rights to use and exclude.191See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (“Property rights in a physical thing have been described as the rights ‘to possess, use and dispose of it.’ ” (quoting United States v. Gen. Motors Corp., 323 U.S. 373, 378 (1945))); Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 752 (1998) (calling the right to exclude the “sine qua non” of property ownership). Adjacent property owners cannot entirely exercise these rights with respect to the sidewalk, as noted at the beginning of this Section, but they can exert incomplete yet significant versions of them. One noteworthy historical example is that, at common law, “[c]ourts would hold that a person who stopped on the sidewalk in front of a man’s house and addressed that man abusively was committing trespass—although the speaker stayed on the public sidewalk.”192Shoked, supra note 30, at 1564. That is, for purposes of this tort, courts treated the sidewalk as if it was the private property of the adjacent landowner and extended to him the power to exclude some of the public.

Today, examples of similar adjacent-owner power abound. In places like New York City where sidewalk trash bag piles are common, those piles are a privilege of owners of adjacent property.193See supra notes 61–62 and accompanying text. Only adjacent owners may place their trash on the sidewalk in front of their building; if anyone else does so, it is unlawful littering.194See N.Y.C., N.Y., Admin. Code § 16-118 (2023). Similarly, the privilege of appropriating sidewalk space to use for curb cuts, advertising, displays, or restaurant seating is only enjoyed by owners and tenants of adjacent property.195See Casado Pérez, Privatizing, supra note 27, at 20; infra Section II.B (discussing permitting processes for these sidewalk uses). Along with these use privileges also comes, for example, the power to exclude from the dining space those whom the establishment wishes to exclude—perhaps people who are not patrons, who are disruptive, or who are engaged in panhandling.196See Loukaitou-Sideris et al., supra note 153, at 157 (observing that sidewalk cafés are a way in which “private interests extend their control over public space”). Consider sidewalk vendors too. Much of the municipal regulation of sidewalk vendors discussed below either exists at the behest of adjacent property owners urging the city to protect “their” sidewalk or expressly delegates to those owners the power to regulate their slice of the public sidewalk.197See Casado Pérez, Privatizing, supra note 27, at 22; supra notes 107–112 and accompanying text (discussing political policymaking agenda of adjacent property owners); infra Section II.B. For example, some municipalities require sidewalk food vendors not to operate within a certain distance from brick-and-mortar restaurants unless they can secure the support of those restaurants.198E.g., Boulder, Colo., Mun. Code § 9-6-5(d)(1)(A)(ii) (2023); Salt Lake City, Utah, Code of Ordinances § 21A.36.160(F)(5); Michael Heller & James Salzman, Mine! 38 (2021). And in New York City, sidewalk Christmas tree vendors must secure the permission of the owner of the adjacent property before lawfully setting up their shops.199 N.Y.C., N.Y., Admin. Code § 19-136(a)(4) (2023). Thus, owners of adjacent property sometimes even have the right to exclude from public property at least some of those whom they wish not to be present on that public property. Critically, though, adjacent property owners are accountable to no one when they make these decisions about use and exclusion with respect to the sidewalk—decisions which have no reason to be public-regarding and every reason to be self-interested.

Of course, merely having owner-like obligations or privileges with respect to public space does not necessarily lead people to consider that space privately held or controlled.200See Dana & Shoked, supra note 30, at 786 (discussing empirical research suggesting that “individuals’ perceptions of private property’s boundaries are complex, inter-subjective, and ambiguous” and contending that property rights and expectations are not “fully binary”); Casado Pérez, Privatizing, supra note 27, at 13 (similarly highlighting the “complex public-private interaction” and “multiple rights” in public spaces like sidewalks). But perceptions are complex, and some people do report feeling as if adjacent owners “own[] the sidewalk.”201 Amelia Thorpe, Owning the Street 135 (2020) (discussing interviews conducted); cf. Jaques v. Nat’l Exhibit Co., 15 Abb. N. Cas. 250, 252 (N.Y. Sup. Ct. 1884) (referring to obstruction of “plaintiffs’ sidewalk” rather than the sidewalk in front of plaintiffs’ business); supra notes 1–9 and accompanying text (same with respect to the sidewalk in front of Senator Collins’s home). This is certainly not to say that such owners always act as or consider themselves to be owners of the sidewalk space, but rather to underscore the fluidity of concepts like ownership and control with respect to the sidewalk.

In this, sidewalks are a somewhat unique liminal space. Often, if a space is for the public to enjoy, it is generally the public’s obligation (in the form of a government accountable to the public) to care for and maintain that space. And if a space is private, it is the private owner’s dominion to enjoy and from which to exclude others, and it is generally the private owner’s obligation to maintain.202Cf. 2 William Blackstone, Commentaries *2 (characterizing private property as “that [s]ole and de[s]potic dominion”). But when it comes to the sidewalk, we have a curious and distinct amalgam. The government has outsourced the obligation to maintain public space to private individuals who are not accountable to the public, and it has granted private individuals some owner-like rights to exclude others from the public space for their own private benefit rather than for the public good. But at the same time, those obligations and rights are not exhaustive. The general public does have the right to walk on sidewalks, to recreate there, to speak there, and to protest there without the permission of the adjacent owner.203See, e.g., United States v. Grace, 461 U.S. 171, 177 (1983); Hague v. Comm. for Indus. Org., 307 U.S. 496, 515–16 (1939). The government has the right to build utility infrastructure on sidewalks without compensating the adjacent owner for the intrusion.204The installation of utility infrastructure on truly private property is a taking of property requiring the payment of just compensation under the Fifth Amendment. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). And so on.

So, rather than fully shifting sidewalks into private hands and endowing private parties with all the rights and responsibilities of ownership,205See supra notes 136–139 and accompanying text. we have chosen to straddle property concepts.206See, e.g., Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 26 (observing the “persistent ambiguity over the sidewalks’ publicness”). But even worse, in doing so, we have deepened the conflict, undermined accountability for the quality and accessibility of the resource, and abandoned some core property law principles by giving some people a heightened sense of power and control over the space and its users.207Cf. Rose, supra note 139, at 715–16 (presenting as “the basic argument[] in favor of private ownership” the notion that “uncertainty about property rights invites conflicts and squanders resources”).

B. Municipal Agencies

With the property law of sidewalks a jumble of obligations and privileges that do not neatly track ownership, it becomes all the more important for municipalities themselves to resolve conflicts among users and to conserve the shared resource. But here too, our most common regimes fall short. Specifically, they fall short because they reflect significant fragmentation of the municipal agencies responsible for various aspects of sidewalk life. Each municipal official I interviewed voiced the same observation,208I conducted semi-structured interviews over the telephone with six current and former municipal officials in Boston and New York City. I asked each to comment (without specific prompting from me) on what they viewed as the most significant challenges to effective use and regulation of sidewalks and to offer their thoughts on solutions. I then set out my argument and asked for their reaction to it. We proceeded to have more open-ended discussions about their professional experience with sidewalks and their suggestions for further research or examples. I remain deeply grateful for these officials’ time and expertise. born from collective decades of experience in sidewalk governance: this fragmentation—what former New York City Transportation Commissioner Janette Sadik-Khan called a “multi-jurisdictional crossroads”—makes it difficult for municipalities to coherently and effectively govern the sidewalk in all of its diverse functions, and it creates challenges for regulated entities seeking to understand their obligations and make lawful and socially beneficial use of the space.209Sadik-Khan Interview, supra note 93; see Wiley-Schwartz Interview, supra note 66; Telephone Interview with Kate Slevin, Former Assistant Comm’r for Gov’t & Cmty. Affs., N.Y.C. Dep’t of Transp. (Mar. 25, 2022) [hereinafter Slevin Interview]; Telephone Interview with Lucius Riccio, Former Comm’r, N.Y.C. Dep’t of Transp. (Mar. 14, 2022) [hereinafter Riccio Interview]; Daus Interview, supra note 23; Carter Interview, supra note 25.

Consider just a few of the uses and users discussed in Part I. I will use New York City as a guiding example here, but many municipalities share a similar regulatory landscape.210See, e.g., Casado Pérez, Privatizing, supra note 27, at 22 (“Sidewalks in Philadelphia are governed by a myriad of agencies in addition to the rights and responsibilities of the property owner.”); id. at 23 (offering Los Angeles and Austin as other examples of municipalities exhibiting the same “nested institutional nature” of sidewalk governance). As Professors Evelyn Blumenberg and Renia Ehrenfeucht have observed, “in most cities, no single agency or task force regulates sidewalks. Instead, they are governed by numerous and diverse offices—such as city planning, public works, consumer affairs, engineering, transit, redevelopment, the district attorney, and the police.”211Evelyn Blumenberg & Renia Ehrenfeucht, Civil Liberties and the Regulation of Public Space: The Case of Sidewalks in Las Vegas, 40 Env’t & Plan. A 303, 305 (2008).

Suppose first that a patch of sidewalk is unsafe or unstable. Though the obligation to repair that sidewalk often falls on the adjacent owner,212See supra notes 158–172 and accompanying text. it is the job of the Department of Transportation—the regulator of the physical terrain of the sidewalk—to enforce that obligation.213 N.Y.C., N.Y., Admin. Code §§ 19-101, 19-152 (2023) (providing Department of Transporation with the authority to direct adjacent owners to repair sidewalks); see, e.g., Atlanta, Ga., Code of Ordinances § 138-3 (Department of Transportation); Balt., Md., Code of Ordinances § 18-3-102(a) (Department of Public Works and Transportation); St. Louis, Mo., Code of Ordinances § 20.26.010 (Director of Streets). Suppose instead that a sidewalk is in need of trees, or that the sidewalk has a tree that is in danger of falling. For these concerns, the Parks Department is responsible.214 Request a Street Tree, supra note 60; Damaged and Fallen Trees, N.Y.C. Dep’t of Parks & Recreation., []. What if trash is piling up, or is put out for collection on the wrong days, such that it attracts pests or blocks the sidewalk? That falls within the purview of the Department of Sanitation.215See N.Y.C. Dep’t of Sanitation, A Summary of Sanitation Rules and Regulations 12 (2009), []; Sanitation Penalty Schedule, 16 Rules of the City of New York § 19-103 (prescribing penalties for “dirty sidewalk” violation under section 16-118(2)(a) of New York City Administrative Code). In New York City, enforcement of snow clearing obligations likewise is in Sanitation’s purview, but in other municipalities, we would find ourselves back under the umbrella of the Department of Transportation.216 N.Y.C., N.Y., Admin. Code §§ 16-101, 16-123 (2023); see, e.g., Cambridge, Mass., Code of Ordinances § 12.16.110 (Department of Public Works); Iowa City, Iowa, City Code § 16-1A-2 (same); Portland, Me., Code of Ordinances § 25-173(b)(3) (2018) (Department of Public Works or Permitting and Inspections Department); Sidewalk Snow Removal, City of Chi., []. Bike racks are under the oversight of the Department of Transportation.217See Bicycle Parking, N.Y.C. Dep’t of Transp., []; see, e.g., Bike Parking, S.F. Metro. Transp. Auth., [] (Metropolitan Transit Authority); Bike and Scooter Parking, Dist. Dep’t of Transp. (D.C.), []. Curb cuts require permits from the Department of Transportation and the Department of Buildings.218See Curb Cuts, N.Y.C. Dep’t of Buildings, [] (also noting need for permits from Department of Transportation). Scaffolding? Putting it up and taking it down requires a permit from the Department of Transportation,219See Erecting & Deconstructing Sidewalk Sheds / Scaffolding in NYC, N.Y.C. Dep’t of Transp., []. but having it up requires a permit from the Department of Buildings.220See Scaffold & Shed Permit, N.Y.C. Dep’t of Buildings, [].

Residents and property owners who want to know what they must do, or to whom to complain when these regulations need to be enforced, must navigate a tangled thicket of various municipal agencies, none of which have global authority with respect to the space. Equally important, none of these agencies are obligated to coordinate when exercising their respective powers. And it is not as if their powers have no need to interact: trees, trash, snow, scaffolding, and curb cuts all interact with one another and with the multitude of other sidewalk users and uses discussed in Part I—in ways both likely and unlikely to be contemplated by these agencies. Scaffolding, for example, impacts restaurants and shops operated by adjacent property owners, as well as residents eager to recreate on the sidewalk,221See supra notes 65, 99–101 and accompanying text. but none of these users are central to the organizational missions of the Departments of Transportation or Buildings. Scaffolding, as noted above, also provides shelter for and thus attracts people experiencing homelessness, but these sidewalk users are likewise not at the core of those agencies’ expertise or responsibility.222See supra note 101 and accompanying text. Meanwhile, agencies like the Department of Homeless Services, which are responsible for that set of users, are not part of the scaffolding regulatory process at all. In these ways, the absence of coordination both fails to resolve conflicts in the use of sidewalks and indeed creates additional conflicts.

Now suppose we add more users and uses to the mix. The Department of Consumer Affairs tends to adjudicate applications for permits to use sidewalk space for commercial uses like outdoor dining and café seating.223 N.Y.C. Dep’t of Consumer Affs., Sidewalk Café Design and Regulations Guide (2013), []; see, e.g., How to Obtain a Permit for a Sidewalk Café, City of San Diego (Oct. 2019), [] (listing numerous agencies and required approvals); License Application: Sidewalk Café, City of Minneapolis, [] (Community Planning and Economic Development); LA Al Fresco: Sidewalk Dining Temporary Use Authority Rules and Guidelines, City of L.A. (May 4, 2023), [] (Bureau of Engineering). If alcohol will be served, the State Liquor Authority must sign off.224See Frequent Violations of the ABC Law by Retailers, N.Y.S. Liquor Authority, []. If a heater will be employed, the Department of Buildings must approve it and the Fire Department must issue an “open flame” permit.225Frequently Asked Questions: Sidewalk Café Heaters, N.Y.C. Dep’t of Consumer Affs., []. Even candles at sidewalk cafés require open flame permits from the Fire Department.226See id. Vendors that wish to sell food on sidewalks tend to require licenses and permits from the Department of Health.227 N.Y.C., N.Y., Admin. Code § 17-307 (2023); see Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 129­–55 (discussing history of sidewalk vending regulations and modern vending ordinances across the country); Casado Pérez, Privatizing, supra note 27, at 50 (discussing regulation of sidewalk vending in Los Angeles and Chicago). Buskers or musicians that want to perform on sidewalks may require a permit from the Police Department if they want to use a sound device like a speaker or boombox.228See Parade and Sound Permits, N.Y.C. Police Dep’t, []. A separate Film Office may require a permit from productions filming movies on sidewalks.229See When a Permit Is Required, N.Y.C. Mayor’s Off. of Media & Ent., []. Communities require permits from the Police Department to hold parades or moving protests,230See Parade and Sound Permits, N.Y.C. Police Dep’t, []. but need permits from the Street Activity Permit Office to hold stationary protests or block parties.231See Permit Types, N.Y.C. Mayor’s Off. of Citywide Event Coordination & Mgmt., []. Much municipal transit infrastructure on sidewalks is within the purview of the Metropolitan Transit Authority (a state entity),232See N.Y. Pub. Auth. Law. §§ 1263, 1264, 1265, 1266, 1266-C (McKinney 2019) (describing MTA authority). but bus stop shelters fall within the city Department of Transportation’s umbrella,233See Coordinated Street Furniture, N.Y.C. Dep’t of Transp., []. as does bike share.234See Bike Share, N.Y.C. Dep’t of Transp., []; Sadik-Khan Interview, supra note 93.

Finally, people experiencing homelessness on sidewalks navigate a wide and complicated range of municipal agencies like the Departments of Homeless Services, Health and Mental Hygiene, and Transportation; the Parks Department; and, perhaps most controversially, the Police Department.235See Street Outreach, N.Y.C. Dep’t of Homeless Servs., []; see also Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 157–87 (discussing municipal regulation of homelessness). Moreover, while some of these interactions may be voluntarily or beneficial for the people in question, many others may be neither.236See Andy Newman & Michael Gold, New York City Clears 239 Homeless Camps. Only 5 People Move to Shelters, N.Y. Times (Mar. 30, 2022), []; cf. Joseph W. Mead & Sara Rankin, Why Turning Homelessness into a Crime is Cruel and Costly, Conversation (June 20, 2018, 6:27 AM), [] (observing that “local laws punish Americans who are homeless” and that, “[o]ver the last decade, city-wide bans on camping in public have increased by 69 percent while city-wide panhandling bans rose by 43 percent” across the country). This reality, particularly as it impacts an immensely vulnerable group, only further complicates matters.

Again, we see a fragmented web of both siloed and interdependent authority with little coordination.237See Reg’l Plan Ass’n, Re-Envisioning the Right-of-Way (2021), [] (providing an annotated diagram capturing the myriad of agencies responsible for various sidewalk uses). And again, the absence of that coordination both leaves conflicts unresolved and risks creating further conflict. Sidewalk cafés and vendors impact pedestrians and recreating residents in ways both desirable and undesirable, but the Departments of Consumer Affairs, Health, and Media, and the Fire Department, are not well-positioned to expertly evaluate those collateral interactions. For example, while the Department of Consumer Affairs does demand that sidewalk cafés keep a pedestrian path clear,238See N.Y.C. Dep’t of Consumer Affs., supra note 223. it does not have the wide-angle lens to evaluate the impact of a given sidewalk café on the walkability and character of an entire block or neighborhood. Perhaps a given area sees few pedestrians and could therefore accommodate a larger café; perhaps the residents, adjacent property owners, and nonowner commercial interests would like to attract more pedestrians, and a larger café presence could help draw them in; perhaps those interests take the opposite view, which might counsel in favor of an even smaller café presence than would otherwise be allowed.239See supra notes 102–104 and accompanying text. This regulatory process is also not suited to evaluate and resolve potential conflicts between businesses—not just competition, but incompatible noise levels, for example.240See supra note 127 and accompanying text. The list goes on: how will a given parade or block party—primarily within the purview of the Police Department—interact with businesses and residents? With trees? Will more vendors be permitted (to allow them to capitalize on a business opportunity and to provide food and drinks to attendees) or fewer (to keep paths clear)?241See supra notes 107–112 and accompanying text. How attuned is the Parks Department going to be to the risks trees may pose to business visibility or to the space those trees may take away from vendors?242See supra notes 117–119 and accompanying text.

As if that were not enough complexity, business improvement districts (BIDs) possess their own quasi-regulatory authority over the sidewalks within their jurisdictions. By providing and directing supplemental policing, sanitation, and capital improvements, BIDs can influence who may use sidewalk space and how they may use it.243See, e.g., Briffault, supra note 56, at 394–409 (discussing BID powers and activities, including programs aimed at removing people experiencing homelessness); Our Services, Grand Cent. P’ship, [] (describing the BID’s provision of oversight services and infrastructure like “supplemental public safety,” light poles, garbage cans, bike racks, benches, and “homeless outreach”). But perhaps more importantly, BIDs can indirectly shape those uses and users by affecting how the various municipal entities just discussed create and enforce their own rules and processes. Indeed, municipalities often regulate sidewalks with the interests of BIDs—and the commercial entities they represent—in mind.244See Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 244 (observing that “municipal policies and ordinances assume a link between sidewalk space and abutting property interests—particularly those properties that are engaged in economic activities”). For example, BIDs have often “adamantly opposed” street vendors because they compete with the store owners who make up the BID,245Id. at 145. and municipalities in turn often limit the possibilities and locations for sidewalk vending.246See Casado Pérez, Privatizing, supra note 27, at 50 (“The underlying justification [for vending regulations] seems to be protecting brick and mortar establishments from competition.”). But BIDs by design tend not to represent the interests of residents, nonowner commercial interests, or communities, so insofar as BIDs regulate or drive regulatory decisions, they may do so with a singular perspective in mind rather than with an eye towards harmonizing uses.247See infra notes 276–283 and accompanying text (evaluating role of BIDs in sidewalk governance).

Finally, beyond creating and failing to resolve conflicts among users and uses, this pervasive fracturing of authority and oversight has two additional consequences. First, it results in significant challenges for everyone seeking to make use of the sidewalk, particularly those with the fewest resources to devote to navigating the maze. Insofar as those uses are socially desirable, complex and confusing red tape creates the risk that society will lose out on their benefits—whether a café, a parade, a bike rack, a vendor, a tree, or a neighborhood gathering. Second, fracturing is likely to result in suboptimal governance. As Professors Jody Freeman and Jim Rossi have powerfully illustrated, “fragmented and overlapping delegations of power” lead to “redundancy, inefficiency, and gaps.”248Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1133, 1134–35 (2012). To be sure, complex problems may require complex solutions beyond the ability or expertise of any one entity to achieve.249See, e.g., Anne Joseph O’Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 Calif. L. Rev. 1655, 1676–79 (2006); Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201, 211–14. But complexity that emerges from inertia or from power politics and budget grabs does not serve any public purpose.250See, e.g., O’Connell, supra note 249, at 1679–83; Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2340 (2001). And when that complexity leads to budgetary waste, responsibility hot potatoes, or information hoarding, the ability of government to offer good and prompt solutions to problems—particularly problems borne by those with relatively less political power—declines.251See Freeman & Rossi, supra note 248, at 1182–85, 1210; Richard E. Levy & Robert L. Glicksman, Agency-Specific Precedents, 89 Tex. L. Rev. 499, 510–14 (2011). Fragmentation also generates, as discussed above, “profound coordination challenges” that similarly interfere with government’s ability to respond to problems.252Freeman & Rossi, supra note 248, at 1135 (emphasis added). Moreover, divisions of authority are apt to lead to divisions of opinion about whether a particular use is a challenge or an opportunity—that is, whether a given use is socially desirable or not. And while each agency may have special expertise to bring to bear on that question, the value of those unique competencies can be lost in the absence of a coordinating authority, particularly if turf wars erupt that lead agencies to inefficiently ignore or devalue each other’s input.253See id.; Riccio Interview, supra note 209 (warning of administrative turf wars). In short, effective regulation requires that there be someone able to “see the whole picture,” and when it comes to sidewalks, there is often nobody in a position to see it, let alone respond to it.254Renia Ehrenfeucht & Anastasia Loukaitou-Sideris, Planning Urban Sidewalks: Infrastructure, Daily Life, and Destinations, 15 J. Urb. Design 459, 463 (2010); see Bliss, supra note 74.

III. Sidewalk Administration

Some degree of conflict among users and uses of any shared space is likely unavoidable, and the sidewalks are no exception. But the foregoing analysis has demonstrated that the degree of conflict on the sidewalk and the risks that conflict poses for the quality of the shared resource are particularly salient. This is not to say that sidewalks everywhere face the same degree of danger; many communities certainly feature sidewalks that are working at least well enough for their various users. But in many other communities—particularly those in dense or less wealthy areas, or both—things are not so rosy. Moreover, even communities that have muddled through decently enough thus far could still benefit from improving the administration and use of their sidewalks to make them more efficient and more equitably welcoming. And nearly all communities are likely to see changing and increasing demands on the space as technology and climate change both advance.255See supra notes 22–25 and accompanying text.

One fundamental obstacle to effective and equitable sidewalks is that nobody fully “owns” the sidewalk. From a property law perspective, the features of ownership held by municipalities, adjacent landowners, and the public are a jumble of contradictions and mismatched obligations. From a regulatory perspective, the diffusion of administrative responsibility results in a quagmire of siloed, uncoordinated decisionmaking that is a hallmark of suboptimal governance. These spaces have thus been effectively administered neither by property rights nor by government intervention.

For some observers, all of these uses, and all of the conflict between them, is a large part of what makes cities so great. Jane Jacobs waxed poetic about the “ballet of the good city sidewalk” in which “the individual dancers and ensembles all have distinctive parts which miraculously reinforce each other and compose an orderly whole”—a “complex order” that “never repeats itself from place to place, and in any one place is always replete with new improvisations.”256 Jacobs, supra note 15, at 50. Sociologist William H. Whyte likewise longed for a vibrant, bustling sidewalk full of “amiable disorder”—even if achieving it meant loosening or eliminating regulations of many users.257See William H. Whyte, New York and Tokyo: A Study in Crowding, in The Essential William H. Whyte 227, 228, 243–44 (Albert LaFarge ed., 2000).

The more extreme version of the embrace-the-chaos approach to the sidewalk is both shortsighted and unrealistic. It is shortsighted because, while disorder can be exciting and even generative for a time, in the long run, it risks degrading and depleting the resource until it ceases being desirable or useable. And it is unrealistic because most users of sidewalks will not tolerate a policy of truly unbridled disorder for very long. But at the same time, Jacobs is likely right that few users of sidewalks desire the opposite extreme. Antiseptic, “disneyfied,” characterless sidewalks are likely not places that most people want to visit or spend time in, or that will attract customers to businesses.258See Kenneth A. Stahl, Local Citizenship in a Global Age 201 (2020). Without people milling around—what Jacobs called “eyes upon the street”—communities may feel less safe and property values may decline as one gets the sense nobody wants to be there.259 Jacobs, supra note 15, at 35. In any event, the First Amendment compels municipalities to allow at least some speech and some gatherings to take place on sidewalks.260United States v. Grace, 461 U.S. 171, 177 (1983); Hague v. Comm. for Indus. Org., 307 U.S. 496, 515–16 (1939).

The difficult question is thus how to manage the sidewalk effectively, coherently, and responsibly. While this Article does not claim to have all of the answers to each and every question that sidewalks pose, it does contend that the first step is to put someone in charge of answering those questions. In short, because the problem is that nobody “owns” the sidewalk, the solution lies in giving someone that ownership. That is, after all, what the classic analyses of the “tragedy of the commons” counsel: either privatize the space or govern the space in the public interest.261Sinden, supra note 141, at 537. As discussed above, while norms and informal ordering can also manage some shared spaces, the sidewalks of most communities are not ideal candidates. See supra notes 140–141 and accompanying text. Another option in the sidewalk setting could involve turning to nuisance law. See Jaques v. Nat’l Exhibit Co., 15 Abb. N. Cas. 250, 253–54 (N.Y. Sup. Ct. 1884) (enjoining a puppet show that caused spectators to crowd the sidewalk and interfere with another business on the basis that the show and the crowd it drew constituted a nuisance). The problem is that nuisance law “[does] not prevent nuisances from arising, but merely g[ives] damages or an injunction after the fact in an expensive lawsuit by one neighbor against another.” Dukeminier et al., supra note 138, at 922. So just as nuisance law has taken a back seat to modern zoning law in the context of land use planning, see id., it is also a decidedly suboptimal response to the myriad of problems this Article surfaces.

This Part explores both paths. True sidewalk privatization—actually giving individuals and businesses ownership and the full bundle of property rights, including the power to exclude—is likely to be a catastrophe, but there remains something to be said for properly regulated hybrid arrangements, business improvement districts, public-private partnerships, and the like. Even so, these arrangements can only achieve so much and can only do so under limited conditions. That leaves sidewalk government. And as long as regulation is the most plausible way of preserving the long-term quality of the space and resolving the panoply of unavoidable conflicts among users, the municipal regulatory architecture needs to be enhanced, streamlined, coordinated, and consolidated so that Jacobs’s sidewalk ballet has the choreographer it badly needs.

A. Privatizing Sidewalks

First, the case for imposing private property rights on sidewalks. Here, I do not mean to refer to those circumstances where an adjacent owner’s lot line simply extends into the sidewalk space. As discussed above, the public owns an easement over that land and therefore should bear the burden, under the common law, of maintaining it.262See supra notes 148–149 and accompanying text. The foregoing discussion of the conceptual and practical confusion surrounding sidewalk obligations and privileges applies all the same regardless of where the lot lines happen to fall. Nor do I mean to refer to the ad hoc privileges discussed in Section II.A that adjacent owners exercise with respect to sidewalks. Rather, I refer to the appetite in some corners to move toward truly private sidewalks: the privatization of at least some otherwise public sidewalk land.263See, e.g., Loukaitou-Sideris et al., supra note 153, at 152–57; Hollie Russon Gilman, Why Kansas City, Missouri, Plans to Privatize Sidewalks, Vox (Jan. 29, 2018, 11:10 AM), [].

These private sidewalks could theoretically provide the order, conflict resolution, and efficiency of use that sidewalks too often lack. By endowing someone with the full panoply of both responsibility and rights—with the powers to exclude and to maintain order, and with the incentive to exercise those powers efficiently in order to maximize the value of their space—privatization can protect the resource from overuse and misuse.264See supra notes 136–138 and accompanying text. Similarly, privatization could perhaps generate a sense of pride and an appetite for caretaking that would enhance the quality of the sidewalk.

One common example of this sort of privatization outside the sidewalk setting is the “POPS” or “privately owned public space.” In the POPS context, a private landowner sets aside some of their space—an atrium, garden, plaza, or the like—and makes it available to the public on terms negotiated with the municipality and subject to listed rules of behavior.265See, e.g., N.Y.C. Zoning Res. § 37-752 (2007); Jerold S. Kayden, N.Y. Dep’t of City Planning & Mun. Art Society of N.Y., Privately Owned Public Space 38 (2000); Sarah Schindler, The “Publicization” of Private Space, 103 Iowa L. Rev. 1093, 1097–98 (2018). A landowner will offer a POPS most frequently as a condition for receiving approval to construct a building otherwise not permitted by local zoning rules.266See, e.g., Kayden, supra note 265, at 22–25; Schindler, supra note 265, at 1095–96. POPS might be considered a win-win in the following sense: they are a mechanism for the provision of high-quality and well-maintained public space at lower cost to taxpayers, and the landowners who provide and care for those spaces enjoy privileges with respect to that space and are afforded extra privileges with respect to the rest of their private space.267See Schindler, supra note 265, at 1109–17. One could therefore find some cause for optimism in adapting some version of the POPS model to the sidewalk. That is, we could give adjacent property owners more rights and more responsibilities than they already have with respect to the sidewalk—or perhaps offer those additional rights and responsibilities in exchange for some development bonus—and achieve a better and more efficiently maintained resource with clearer lines of accountability and responsibility, and without the regulatory fracturing that currently plagues sidewalks.268See Blumenberg & Ehrenfeucht, supra note 211, at 315 (suggesting that regulatory complexity is often invoked as a reason to privatize sidewalks); Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 47–48, 247–52.

The problem, however, is that POPS are generally considered not to have delivered on their promises. Though there are a large number of them throughout the country, their quality does not match their quantity.269Schindler, supra note 265, at 1115. Professor Jerold Kayden conducted an empirical study of four decades’ worth of POPS in New York City and concluded that nearly half of these spaces are “nothing more than empty strips or expanses of untended surface,” featuring “locked gates, missing amenities, and usurpation by adjacent commercial activities, in contravention of the spirit or letter of applicable legal requirements.”270 Kayden, supra note 265, at 1–2. In this sense, POPS are a cautionary tale about the prospect of solving sidewalk quality problems with privatization: the enforcement necessary for municipalities to keep private owners to their end of the bargain and to prevent them from sliding into too much exclusion or slipping into the sense of having too much private ownership is very burdensome—evidently too burdensome—for municipalities to handle. Indeed, even when they work “well” in the sense that they are well-maintained and not closed off to the public, POPS are criticized as being “sterile,” underused, “exclusionary,” “diminish[ing] opportunities for free speech,” and failing to replicate the sort of organic encounters with others in a shared community that truly public space affords.271Schindler, supra note 265, at 1097; see id. at 1129–40. Accordingly, Professor Schindler argues that the solution lies in making POPS “more public”—in decentering their privatized nature. Id. at 1141.

Turning sidewalks into true POPS would mean placing them under the wholesale ownership and control of private property owners and opening them to the public only in accordance with contractual arrangements made with the municipality. This would likely be especially disastrous. For one thing, it could mean that there would effectively be as many distinct legal regimes as there are parcels of sidewalk-adjacent land in the city. The legal contours of one’s rights to stroll, chat, vend, gather, speak, and protest might change every few feet—and perhaps with discriminatory effects—which would be a recipe for chaos and conflict even beyond the status quo.272See Margaret Kohn, Brave New Neighborhoods 3–4 (2004) (exploring how “the privatization of public space undermines the opportunities for free speech”); Larissa Katz, Spite and Extortion: A Jurisdictional Principle of Abuse of Property Right, 122 Yale L.J. 1444, 1449–50 (2013) (calling private property the power to “set[] the agenda” for an asset). For another, it would be more difficult for governments and utilities to place sidewalk infrastructure if they had to negotiate anew with each adjacent owner.273See supra Section I.A.5. And finally, privatizing sidewalks would not actually solve one of the most significant current problems—namely, that individual owners are accountable to no one, have no incentive to account for the impact of their activities on their neighbors, and have no reason to exercise their power in the public interest. All of this means a state of affairs that would be ripe for abuse by adjacent owners, just as POPS have proven to be.274See Blumenberg & Ehrenfeucht, supra note 211, at 314–17 (discussing abuses of power granted over sidewalks to owners of casinos in Las Vegas).

In short, the problem with privatization is that a commons ceases to be a commons after the resource has been preserved by the imposition of private ownership. Property rights solve the tragedy of the commons by eliminating the commons, not by eliminating the tragedy. This may be a fair approach when the value of the resource in question exists simply in its ability to be consumed, but it loses much of its allure as soon as there is also value in the experience of the collective use itself and in the equality of access to that experience.275Cf. Loukaitou-Sideris & Ehrenfeucht, supra note 28, at 7 (“Access to public spaces also is a mechanism by which urban dwellers assert their right to participate in society . . . .”); Rose, supra note 139, at 768 (expressing concern that privatization risks underinvestment in “ ‘interactive’ activities, where increasing participation enhances the value of the activity”).

That said, there remains some room for tame forms of privatization to assist with the preservation of sidewalks. One is a version of the status quo in rural or suburban residential areas that have fewer people and therefore generally low-intensity, low-conflict sidewalks. The fewer the conflicts, the more effective and efficient it may be to outsource some responsibilities to adjacent owners—even if doing so results in some territorial behavior and privileges that may be undesirable in areas with higher-conflict sidewalk use. That is, in areas where the primary users and beneficiaries of sidewalks are just the adjacent owners and few others, there may be little harm—and meaningful efficiency benefits—in leaving those owners generally in charge of the space. But even in such a community, it is important that there be a reliable backstop for owners unable to equitably bear these responsibilities in light of economic constraints, physical limitations, and the like.

More urban areas might benefit from pieces of privatization too. Consider business improvement districts (BIDs). As explained above, BIDs are private entities with responsibility for a given area that are funded by businesses or property owners within that area and often governed primarily by representatives of those businesses or property owners.276See, e.g., Kessler v. Grand Cent. Dist. Mgmt. Ass’n, 158 F.3d 92, 95–97 (2d Cir. 1998); supra notes 53–56 and accompanying text. So, for example, many BIDs handle sidewalk renovation, plantings, trash-collecting, snow-clearing, and the like, and they may install amenities like lighting, seating, or information booths to make the area attractive and to increase business revenue.277See Casado Pérez, Privatizing, supra note 27, at 24; see, e.g., Kessler, 158 F.3d at 95–96. In this way, BIDs fill some of the governance gap left by the fractured public regulatory architecture discussed above. They consolidate the provision of necessary upkeep and other services, they can help ensure that those functions are carried out in a consistent and coherent manner, they can manage at least some of the conflict among users (particularly among or with the commercial users), and they are accountable to constituents in the area (at least to some of them).

Professor Vanessa Casado Pérez is much more skeptical about the role of BIDs in governing sidewalks. She argues that because BIDs are often controlled by representatives of property owners, and particularly commercial property owners, BIDs are not accountable to the full suite of sidewalk users.278Casado Pérez, Privatizing, supra note 27, at 25–26. This is true. And worse, BIDs are often hostile to the interests of marginalized people—along both racial and socioeconomic lines—and of competing nonowner commercial interests like vendors.279See id. at 27; Monica C. Bell, Anti-Segregation Policing, 95 N.Y.U. L. Rev. 650, 698 (2020); Sara K. Rankin, The Influence of Exile, 76 Md. L. Rev. 4, 39–40 (2016); supra notes 107, 110–112 and accompanying text. These are all urgent reasons to ensure that any role BIDs might serve in managing sidewalk space be restrained, overseen by government, and carefully delimited in scope. But they need not be reasons to abandon BIDs entirely.

For Casado Pérez, the more fundamental problem seems to be that BIDs “redefine our sidewalks’ public nature” and approach those sidewalks as commodities from which to generate profit rather than as public resources.280Casado Pérez, Privatizing, supra note 27, at 27–28. But that is precisely where BIDs’ value might be said to lie. In other words, one version of the problem in the status quo is that the resource of the sidewalk risks depletion by conflict because the sidewalk is too public.281Professor Casado Pérez argues that “everyone should have access to sidewalks,” id. at 55, and that privatization and BIDs “embrace[] a social model where not everyone is part of the public and where certain private interests take precedence,” id. at 63. That everyone should be able to use sidewalks ought to be common ground, but unmanaged conflict among users often tends to deprive people of meaningful access to and enjoyment of sidewalks. Indeed, even in the absence of privatization, BIDs, or regulation, some private interests will inevitably take precedence in the free-for-all of the public sphere, but they may simply be the loudest, strongest, or first ones rather than the most socially valuable or broadly desirable ones. A properly designed, limited, and overseen BID could offer some of the resource-preserving benefits of property rights—for the benefit of all the sidewalks’ users—without generating the harms that would be associated with a POPS-style, fully private regime. Public-private partnerships and other arrangements that deploy voluntarily rendered private resources within relatively accountable supervisory frameworks can do the same, particularly for sidewalks on major thoroughfares or in dense commercial zones.282See Sadik-Khan Interview, supra note 93; Riccio Interview, supra note 209 (making similar observation).

Even so, all of these arrangements can only do so much. At present, their roles are relatively thin, their existence fairly ad hoc, and their capacity too dependent on the resources of the property owners in their area.283See Slevin Interview, supra note 209; supra notes 54–55, 243–247 and accompanying text. And Casado Pérez is right that the more we might ask or permit BIDs to do—the more we move down the spectrum towards privatization—the more dangerous they might become. So while owners and BIDs ought not be discounted as partners in certain settings, privatization is decidedly not the first-best method for administering most sidewalks.

B. The Department of Sidewalks

The first-best method of sidewalk administration thus requires moving in the opposite direction: toward more, and better, governmental responsibility. The fracturing of duties and powers that presently exists both within government and between government and adjacent property owners is untenable and will only become increasingly untenable as populations grow, as new technologies and startup ventures seek to make increasingly large demands on sidewalk space, and as climate change makes more urgent the need to construct spaces for resilience to extreme weather.284Ctr. for Sustainable Sys., U.S. Cities Factsheet, Univ. of Mich. (2022), []; see supra notes 22–25 and accompanying text. Patching up those fissures requires making two moves: first, relocating burdens currently borne and benefits currently enjoyed by property owners into the hands of municipalities, and second, reimagining how municipalities design their bureaucratic and policymaking structures in order to better and more efficiently meet the challenges of the modern sidewalk.

First, deprivatizing sidewalk responsibility would create a better match between the caretaker of the space and the nature of the space. As discussed above, adjacent property owners are charged with maintaining space over which they enjoy few formal property rights. Beyond the odd fit with property theory and doctrine, there is an important practical problem: those owners tend to have few structural incentives to act as responsible stewards for the space. Again, this may be less of an acute problem in rural and suburban residential areas where, as noted, the adjacent owners tend to be the sidewalk’s primary users. And it may be less of a problem where, for example, the adjacent owner uses the sidewalk for private benefits like operating a business. But as technology advances, as the array of users widens, and as the obligations become more burdensome, the misaligned incentives of adjacent owners become more problematic. So, in dense areas where those owners may not be able to internalize—or at least exclusively internalize—many of the rights or benefits with respect to the space, those owners are likely to devote as few resources as possible to it.

With norms able to play only a limited role in large and heterogeneous groups,285See Ostrom, supra note 137, at 211; supra note 141 and accompanying text. the primary remaining incentive such property owners have for meeting their sidewalk obligations is the coercion that comes from the municipality’s power to impose penalties. But this means that, to be effective, the municipality must deploy resources, not to address or fix sidewalk problems, but to monitor and punish a vast array of agents who are often unaware of or minimally willing to serve that role. The inefficiencies are plain.

Imagine instead a world in which a municipality in this position simply did the job itself—whether maintaining trees or repairing cracks or clearing snow. Rather than spending taxpayer dollars to (metaphorically) send a city employee to point at a problem and tell a homeowner to fix it, the municipality could draw on taxpayer money—recognizing that taxpayers all use and benefit from sidewalks, in all the ways explored in Part I—to pay that same employee to do the job themself.286Because most municipalities do not presently impose tort liability on adjacent owners, little would change on that front. See supra notes 167–171 and accompanying text. But where adjacent owners are presently liable for sidewalk injuries, it would follow that municipalities should instead be liable on the same terms as they are for injuries occurring in other public spaces. Sovereign immunity will rarely be an obstacle. See, e.g., Robinson v. City of Lansing, 782 N.W.2d 171, 175–76 (Mich. 2010); Ohio Rev. Code Ann. § 2744.02(B)(3) (West 2016); Fla. Stat. § 768.28 (2022); Minn. Stat. Ann. § 466.02 (West 2022). Consider snow. Rather than demand that hundreds of individual property owners spend time and money shoveling small patches of the sidewalk in an uncoordinated and disconnected manner, the municipality could capitalize on technology and untapped economies of scale and employ a single person to clear an entire block’s sidewalk of snow at once. Individual property owners have no reason to invest in anything more than a shovel given the relatively small scale of their own operations, but a municipality with its much larger scale could reasonably invest in a small fleet of motorized sidewalk snowplows.287See, e.g., Snow Attachments & Implements, Bobcat, []; Snow Blowers, Menards, []; Cecilia Lynch, A Skid Steer, A Snow Blower and Safer Sidewalks in a Small Iowa Town, U.S. Dep’t of Agric., Rural Dev. (Jan. 5, 2023), []. With one plow and one driver, this municipality could clear whole blocks of sidewalk snow more efficiently, more effectively, and in less time than can a few dozen disconnected property owners of varying ages and physical abilities armed with shovels. And the municipality could, without skipping a beat, also address sidewalks adjacent to unoccupied properties or properties that rarely get cleared of snow due to absent or inattentive owners. Indeed, this is exactly the logic to which nearly all municipalities turn when they employ municipal snowplows to clear the roads of snow.288See supra notes 187–188 and accompanying text; infra note 302 and accompanying text (noting shortcomings in municipal plowing of roads).

Getting adjacent property owners out of the sidewalk business—or at least significantly minimizing their role—should not only generate more efficient maintenance of the space, but it should also improve accountability and, with it, quality. Presently, people or entities that suffer due to poorly maintained sidewalks have no direct path to effectively address those shortcomings. And those shortcomings have significant costs.289See supra Section II.A. People with limited mobility, people with strollers, people with neither—to say nothing of delivery robots—are all placed in potential danger by the patchwork of sidewalk responsibility, and yet they have no line to the person in charge.290See Olander, supra note 188; Balter, supra note 79. Rather, they must work to get the municipality’s attention and to enlist its help to prod or punish its property-owner agent into fixing the problem. Putting the city in charge instead would close the loop and enable people to get help and attention from the very entity obligated and able to do something about the problem. Moreover, if neighborhoods consistently have sidewalks that are poorly maintained, there is presently no elected official for residents to vote out of office. It is not as if one can vote out one’s neighbors.291See Paul R. Verkuil, Outsourcing Sovereignty 2, 192 (2007) (discussing privatization’s “threat . . . to democratic principles of accountability and process” and the problems that arise because private delegates “are more likely to escape political and legal oversight”). Municipal responsibility would mean that there would be a council member accountable to their constituents who could engage in oversight or agitate for more funding and attention to their district, and whom their constituents could vote against if they fail to do so.292Cf. Albert O. Hirschman, Exit, Voice, and Loyalty 21 (1970) (emphasizing importance of accountability in settings where, as here, exit is costly).

Three other potential salutary benefits of deprivatizing sidewalk responsibility are worth noting. The first is that doing so could reduce adjacent owners’ territorial feelings towards the public space that happens to abut their property. Perceptions of ownership are complex and socially constructed, and the less that law implies a relationship between property owners and sidewalks, the less that owners and others might infer such a relationship.293See Dana & Shoked, supra note 30, at 786; supra notes 191–201 and accompanying text. None of this is to say that residents would not be able to gather or recreate on the sidewalks in front of their homes, or that restaurants would not be able to set up dining tables on the sidewalks in front of their businesses.294Cf. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) (striking down anti-vagrancy and loitering ordinance). Instead, breaking down the legal connections between sidewalks and property owners could serve to reduce the tendencies of adjacent owners—like Senator Collins, to return to the anecdote at the start of this Article295See supra notes 1–9 and accompanying text.—towards owner-like exclusion and control, and conversely could promote a proper vision of the sidewalk as a shared and vibrant public space.

The second is that private responsibility for sidewalks makes the quality of the space contingent on the resources of the people who happen to live around them. Communities with wealthier people who can afford to maintain more trees, promptly clear snow, and repair damaged sidewalks end up with better sidewalks; communities with people who cannot afford to do so end up with spaces left in disrepair.296See Slevin Interview, supra note 209; supra notes 159, 166 and accompanying text. Decoupling duties for public space from the identities and wallets of the people who live near those spaces could improve the quality of those spaces and would make for more equitably safe and healthy communities.297Along the same lines, making the quality of sidewalks a truly public responsibility would also help break down the classist and racist assumptions that associate the quality of a neighborhood with the quality of its residents. See Jessica Trounstine, Segregation by Design 31 (2018).

The third is that effective maintenance of the sidewalks generates significant positive externalities—and ineffective maintenance generates significant negative externalities. In other words, each person who fails to repair or to shovel their designated piece of the sidewalk contributes to degrading the quality and usability of a whole block’s sidewalk and perhaps even a broader neighborhood’s economy and wellbeing.298Cf. Michael Heller, The Tragedy of the Anticommons: A Concise Introduction and Lexicon, 76 Mod. L. Rev. 6, 10 (2013) (“Privatisation can go too far, to the point where it destroys rather than creates wealth. Too many owners paralyse markets because everyone blocks everyone else. Well-functioning private property is a fragile balance poised between the extremes of overuse and underuse.”). But happily, to draw on Professor Carol Rose’s elucidation of synergies or “network effects,” with every additional piece of the sidewalk that is well-maintained and well-shoveled, the overall quality and usability—and actual use—of the sidewalk increases.299See, e.g., Carol M. Rose, Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age, L. & Contemp. Probs., Winter/Spring 2003, at 89, 97–98; Rose, supra note 139, at 768–70. Relatively small government investments in sidewalk maintenance could therefore have multiplier-effect payoffs on communities, their residents, and their economies, particularly when it comes to already underresourced communities.

To be sure, achieving these goals by deprivatizing sidewalk responsibilities would cost municipalities money.300That said, it is not as if every municipality is helpless. New York City, for example, derives about million each year from fees imposed for sidewalk signs, planters, bollards, ramps, and more. See Sam Roberts, New York’s Sidewalks, Unsung Moneymakers, N.Y. Times (Mar. 3, 2016), []. Outfitting a municipality with a fleet of sidewalk snowplows has a price tag, as does hiring people to drive them. Same for a dedicated corps of concrete-layers or arborists. But the key point is that this money is already being spent, and often inefficiently so. Residents already pay to meet their private obligations—either because they pay someone to carry them out, or because the cost is folded into their rent payments, or because they do the jobs themselves and their time has value. Given economies of scale, the marginal cost of a property tax increase to fund municipal maintenance of sidewalks could even result in a net savings for residents and property owners.301See Freeman & Rossi, supra note 248, at 1182 (discussing how interagency coordination and “[s]treamlining redundant functions” can save money). And while it is certainly true that municipalities sometimes have been and often remain bad at doing their jobs, or that they have privileged wealthier and whiter neighborhoods in the course of doing their jobs,302See Trounstine, supra note 297, at 98–118. property owners are just as capable of being bad at or discriminatory in doing these jobs.303Cf. supra notes 187–188, 288 and accompanying text (noting that municipalities remain in charge of snowplowing on streets without calls to privatize that task). Moreover, nothing would stop a community from, for example, shoveling its own sidewalks if it felt doing so was necessary. The difference would be that, in a world of municipal responsibility, they could turn that act into a political statement about being abandoned and could demand accountability from their elected representatives rather than having to accept it as the way things are.

Indeed, swaths of the public appear to be recognizing that they would be better off with less private responsibility and more municipal responsibility for sidewalks, even if it costs some money. The people of the city of Denver voted in November 2022 to make the city, rather than property owners, responsible for maintaining sidewalks, even though that would mean owners would be charged a fee of up to $9 per month to fund citywide maintenance work.304See 2022 General Election — Nov. 08, 2022, Denver Election Results (Nov. 8, 2022), []; Alayna Alvarez, 1-Minute Voter Guide: Denver’s Initiated Ordinance 307 on Sidewalk Repair, Axios (Oct. 18, 2022), [] (calculating fee). For their part, Chicagoans have been gathering signatures demanding that the city of Chicago take responsibility for removing sidewalk snow and ice in light of the dangers for pedestrians, especially people with limited mobility.305Olander, supra note 188. And in July 2023, the Chicago City Council adopted a pilot program that would do just that.306Todd Feurer, City Council Takes First Step Toward Sidewalk Snow, Ice Removal Pilot Program, CBS News Chi. (July 19, 2023, 6:58 PM), []. New York City officials, including Council Member Tiffany Cabán, have likewise recently called for “public snow removal from sidewalks” in light of the dangers that flow from inconsistent private responsibility.307Gersh Kuntzman, For Peds’ Sake: City Must Take Over Sidewalk and Curb Clearance, Pols Say, StreetsBlog NYC (Feb. 2, 2022), []. And some cities like Rochester, New York and Duluth, Minnesota have borne the responsibility of clearing snow from sidewalks for years, sometimes contracting with farmers with plows to spare to do the job each winter.308Justin Murphy, When It Snows, Farmers Take Plows to City Sidewalks, Democrat & Chron. (Mar. 2, 2016, 10:10 PM), []; Kathi Valeii, Why Cities, Not Individuals, Should Clear Snow From Sidewalks, Bloomberg: CityLab (Jan. 11, 2019, 8:00 AM), [].

Whether viewed as questions of efficiency, accountability, or equity, public responsibility for public space makes sense in many communities and would go a long way toward more coherent, less fractured regulation and maintenance of the sidewalk.

But the public-private fracture is far from the only problem facing sidewalks. The intra-governmental fissures must also be resolved—whether or not municipalities take on more sidewalk responsibilities. As the discussion in Section II.B demonstrates, uncoordinated authority and decisionmaking already fail to coherently and consistently mitigate the web of conflicts among users and uses set out in Part I. It also makes doing business costly and difficult, and it risks inconsistent or needlessly duplicative processes for the whole range of sidewalk users. Indeed, for all of their flaws, what BIDs have going for them is that they consolidate powers, responsibilities, and accountability and can therefore be effective stewards of space. This is what municipalities are missing: a single agency with the authority to manage sidewalks, the obligation to do so with an eye towards all of the sidewalks’ users and uses, and the expertise and wide-angle lens necessary to understand all of those interlocking demands and make them cohere.

A single municipal Department of Sidewalks could play this role and exercise coordinated authority over all facets of sidewalk life.309In 2016, the city of Los Angeles announced a municipal Safe Sidewalks program backed by a .4 billion budget appropriation over thirty years to repair sidewalks and improve accessibility. The City of Los Angeles Launched ‘Safe Sidewalks LA’ to Make Sidewalks Accessible to Everyone, Safe Sidewalks L.A., []. Though the timeframe is disappointingly long, this sort of renewed municipal attention on the quality and usability of the sidewalks is welcome. It remains, however, a far cry from a Department of Sidewalks in that it continues to leave authority over every other aspect of the space and of its use fractured and uncoordinated. It would handle many of the currently private obligations like maintenance and snow removal, but perhaps even more important, it would consolidate governmental responsibility for trash, trees, scaffolds, buskers, cafés, bike racks, scooter rentals, delivery robots, food carts, parades, block parties, protests, rallies, people experiencing homelessness, and so on. So rather than carve up and distribute these responsibilities to the various agencies mapped out in Section II.B, a Department of Sidewalks would manage the space in a more coordinated and holistic manner.310Cf. Freeman & Rossi, supra note 248, at 1184 (discussing importance of holistic thinking that “pierce[s] . . . closed decisionmaking culture[s]”). Moreover, a single identifiable commissioner would be responsible and accountable for the state of the sidewalks, rather than seeing accountability ineffectively dispersed across numerous officials.311See O’Connell, supra note 249, at 1680 (raising concerns of shirking when accountability is spread too widely).

In short, a Department of Sidewalks would house the responsibilities currently borne by adjacent property owners as well as the various responsibilities and regulatory and permitting powers currently held in bits and pieces across municipal government. And in less dense communities where it may make sense for some adjacent owners to continue to shoulder some sidewalk responsibilities,312See Section III.A (acknowledging this nuance). a town’s Department of Sidewalks could expertly evaluate where in the town that is the case and where it may not be—the commercial “main drag” with shops and restaurants, for example. The Department would then distribute and assume responsibility in light of its community’s context and needs.

Of course, a Department of Sidewalks would not solve every problem or displace every other actor. It would still need to work with other municipal agencies and with people and businesses, just like any other agency does. But by giving sidewalks a dedicated regulatory home, a Department of Sidewalks would be able to provide the sidewalks and the whole slew of interests that rely on them with centralized responsibility and with the attention and respect they need. Fragmented as their regulation is now, sidewalks are treated as an administrative afterthought when, given their primacy in the lives of municipalities and their people, they warrant being treated as anything but.

Presently, in many municipalities including New York City, the Department of Transportation tends to take the lead in managing the fractured regulatory system for sidewalks.313See Sadik-Khan Interview, supra note 93. In fairness, then, there is something of a “leader” when it comes to regulating the sidewalk. But with due respect to the hardworking individuals at Departments of Transportation, that agency is the wrong leader for the sidewalk. The transit- and pedestrian-centric focus of Departments of Transportation (i.e., “transporting” people and things) produces and reinforces the pedestrianism and “traffic logic” that Professor Blomley identified as driving so much of sidewalk policy.314See Blomley, supra note 35; Blomley, supra note 17, at 38–56. For example, the Washington Department of Transportation announced in 2021 an Active Transportation Plan that would bring renewed attention to sidewalks, bike paths, crosswalks, and the like. But, reflecting the priorities of the agency that created it, the plan was explicitly designed to center the needs of “people moving themselves”—that is, pedestrians. Wash. State Dep’t of Transp., Washington State Active Transportation Plan: 2020 and Beyond 1 (2021), []. But, for all the reasons discussed throughout this Article, sidewalks are in fact about and must be about so much more than transportation. Sidewalks serve not only pedestrians, but the full cast set out in Part I. A Department of Sidewalks at the center of sidewalk policy, designed to consider all of these users as its constituents, could better balance transportation alongside the numerous other uses of sidewalks.315Cf. Serge Taylor, Making Bureaucracies Think 251, 325 (1984) (evaluating how integrating personnel with distinct areas of expertise and responsibility can “institutionaliz[e]” values and culture, and how “analytical competition” within bureaucracies can “enhanc[e] their ability to adapt to complex and changing problems”).

Former municipal officials in New York City concur. Without necessarily endorsing every facet of a Department of Sidewalks, every official I interviewed agreed that the status quo approach to sidewalk governance—in New York City and elsewhere—is inefficiently fragmented and in need of greater coordination and centralization.316See Daus Interview, supra note 23 (observing that “every city can do better than what they have done” when it comes to the sidewalk); see also Wiley-Schwartz Interview, supra note 66; Sadik-Khan Interview, supra note 93; Slevin Interview, supra note 209; Riccio Interview, supra note 209. They emphasized the desperate need for a master plan or planner—a holistic and thought-through approach to the sidewalk space, rather than the necessarily ad hoc and reactive approach that the current regulatory architecture encourages.317See Slevin Interview, supra note 209; Riccio Interview, supra note 209; Daus Interview, supra note 23. Some former officials thought that could be accomplished within current structures,318See Riccio Interview, supra note 209. but when asked, more tended to agree it would be worthwhile to reimagine institutional design along lines similar to those proposed here.319See Sadik-Khan Interview, supra note 93; Daus Interview, supra note 23.

Reshaping municipal government in these ways is, to be sure, a potentially tall order. It might be beyond the fiscal or political means of many municipalities, large and small, and it might generate concerns of excessive bureaucratic expansion. But there are intermediate steps along the same lines that municipalities can take that would still represent vast improvements over the status quo and that might serve as proof-of-concept steps towards a Department of Sidewalks. For example, a “sidewalks czar” located in a municipality’s mayor’s office could represent one path forward,320New York City Mayor Eric Adams recently announced the appointment of a “public realm czar” with a portfolio extending to parks, plazas, and streets. Winnie Hu, As Demand for Open Space Soars, New York Gets a Public Realm Czar, N.Y. Times (Feb. 16, 2023), []. This is a welcome recognition that the status quo approaches are inadequate, as this Article has argued, but the breadth of this czar’s portfolio risks resulting in inadequate attention to the unique conflicts that play out with respect to sidewalks. though one ought to be wary of locating too much power in the mayor’s hands, removed from the expertise of subject-matter experts and at the whim of shifting political winds.321Cf. Freeman & Rossi, supra note 248, at 1173–74 (discussing presidential coordination of agencies at the federal level). A more promising option would be to establish sidewalks working groups.322Professors Freeman and Rossi make the case that working groups may actually be superior to agency consolidation because they can better resist regulatory capture. See id. at 1186; see also Riccio Interview, supra note 209 (raising concern that a Department of Sidewalks could be too easily captured). Rather than create a new agency or reshuffle responsibilities, municipalities could require existing agencies whose portfolios touch the sidewalks to meet and confer on policies. According to Kristopher Carter, former Co-Chair of the Mayor’s Office of New Urban Mechanics in Boston, the city of Boston found success with exactly this approach during and after the onset of the COVID-19 pandemic.323Carter Interview, supra note 25. Owing to the increase in both users and uses of the city’s sidewalks, Boston recognized the need for greater regulatory attention and coordination, so it required its web of relevant agencies to work together to manage that space.324Id. More municipalities of all sizes could benefit from following that lead, and Boston should continue in that vein after pandemic-related considerations fade into the background. Similarly, New York City Mayor Eric Adams has proposed an interagency working group on “public spaces,” including but not limited to sidewalks, as part of his pandemic recovery plan.325 N.Y.C. Off. of the Mayor, Rebuild, Renew, Reinvent: A Blueprint for New York City’s Economic Recovery 15, []. While this would be an important step in the right direction if it materialized, not all types of public spaces are the same (parks are quite different from sidewalks, for example) and their coordination problems will outlast the current moment.326Cf. supra note 320. More durable, sidewalk-specific attention is necessary in New York City and elsewhere.

Second, municipalities could make the sidewalk permitting process simpler. In addition to leading to inefficient or ineffective policymaking, the regulatory fracturing that currently exists also makes it costly for businesses and individuals to work with government with respect to sidewalks.327Daus Interview, supra note 23. Indeed, it imposes inequitable burdens on those with the least time and fewest resources to devote to navigating the municipal labyrinth. A one-stop shop for all manner of sidewalk permits would reduce costs for businesses and for residents, and it would promote more a coherent permitting environment in which all relevant agencies know what the others are doing. Making permitting simpler is an idea that has already become attractive outside the sidewalk context: Kathryn Garcia and Andrew Yang both made some version of a one-stop permitting shop part of their platforms in the New York City mayoral primary in 2021,328Press Release, Yang for N.Y., Kathryn Garcia and Andrew Yang Commit to Sponsor NYC App Challenge to Implement Garcia’s Plan for a Single Small Business City Permit (Mar. 15, 2021), []. and cities ranging from Lexington, Kentucky to Oakland, California have recently announced similar efforts.329See City Launches New Permitting Process Webpage, Lexington, Ky. (Mar. 9, 2023), []; One-Stop Permit Center: In-Person & Expanded Digital Services, City of Oakland, Cal. (Sept. 13, 2021, 3:37 PM), [] (last updated Jan. 18, 2024, 9:54 AM). The sidewalks are a promising place for municipalities like these and many others to focus.330See Sadik-Khan Interview, supra note 93 (highlighting benefits of one-stop shop approach).

Whether with these smaller steps or with the bigger step of a Department of Sidewalks, cities and suburbs alike can reshape the architecture of sidewalk regulation, right-size their reliance on private property owners, and prevent the depletion of the sidewalk as a useable public resource now and into the future.


Sidewalks are critical public resources. Unique among public spaces, sidewalks are home to an incredibly wide array of users and uses, all of which contact and conflict with one another in numerous ways. Sometimes these encounters enhance the users’ experiences and produce happy collaborations; often, they detract from those experiences and risk producing a chaos that degrades the space for everyone. Management and coordination are sorely needed. But municipalities have chosen to achieve those goals by imposing fractured responsibilities on a tangled web of governmental agencies and on an unaccountable and often unprepared swath of individuals who happen to own adjacent property. The outcome is a sidewalk regulatory landscape that is inadequate, inefficient, and often counterproductive. Preserving and improving sidewalks in the interests of all of their users requires consolidating and coordinating responsibility for these vital spaces in a municipal agency specifically designed for the task.

*Professor of Law, Associate Dean for Faculty Development, Benjamin N. Cardozo School of Law. I am grateful to Samuel Asarnow, Christine Berthet, Nicholas Blomley, Maureen Brady, Vanessa Casado Pérez, Danielle D’Onfro, Barry Friedman, Jocelyn Getgen Kestenbaum, Clayton Gillette, Ben Grunwald, Michael Herz, Noah Kazis, Deborah Pearlstein, Graham Phillips, Lance Polivy, Erick Rabin, Alexander Reinert, Sarah Schindler, Gregory Shill, Stewart Sterk, Lior Strahilevitz, Sarah Swan, Matthew Wansley, Samuel Weinstein, Felix Wu, and Kellen Zale, along with participants in the International and Comparative Urban Law Conference at the University of British Columbia, and in Cardozo’s Summer Faculty Workshop and Junior Faculty Workshop, for helpful conversations, suggestions, comments, and critiques. For sharing their real-world perspectives and experiences with sidewalk government, I am particularly indebted to municipal officials Kristopher Carter, Matthew Daus, Lucius Riccio, Janette Sadik-Khan, Kate Slevin, and Andy Wiley-Schwartz. Finally, I thank the Stephen B. Siegel Program in Real Estate Law for research support. The views expressed in this Article, together with any errors, are mine alone.