The Yale Law Journal


Making the Temporary Permanent: Public Space in a Postpandemic World

07 Nov 2022

abstract. In response to the pandemic, many cities modified their streets, sidewalks, and open spaces. Though these interventions were often designed to be temporary, a number of cities have decided to make them permanent, or are discussing whether to do so. This Essay will argue that, while these public realm reclamation techniques have resulted in health and economic benefits—especially during the height of the pandemic—they also disproportionately harm already underrepresented members of the community and raise equity issues.

For example, when indoor dining was prohibited in many places early in the pandemic, sidewalk dining allowed restaurants to stay in business, and patrons to more safely enjoy socially distanced meals outside. Yet those economic benefits did not flow to many other types of businesses that also had to close their doors, and the health benefits did not aid those who could not afford to be restaurant patrons. Further, some neighbors view the noise and waste from sidewalk cafes as akin to a nuisance. These interventions have also caused harm to people with mobility differences. People who use wheelchairs are often stymied when trying to move down a sidewalk crowded with tables and patrons waiting for tables. Those without access to public transit, and without the ability to bike or walk to work, must take longer routes due to street closures that allow toddlers to ride tricycles without fear of being hit by a car. And the neighborhoods where most of these interventions have taken place tend to be whiter and wealthier than the surrounding community. These harms have not been sufficiently discussed or recognized. Thus, rather than just assuming that these changes to the built environment are a net positive and letting them remain postpandemic, as some cities seem inclined to do, this Essay weighs both their positive and negative effects. It considers how decisions on permanence should be made, and who should be making them, with the goal of enabling more informed decision-making and creating more equitable spaces.


The built environment has long been shaped by a variety of societal forces, including public-health and safety concerns.1 Most recently, the COVID-19 pandemic has fundamentally changed the way that we interact with our public spaces. At the start of the pandemic, cities shut down parks, playgrounds, beaches, and recreation centers to discourage group gatherings based on uncertainty about the virus’s modes of transmission.2 As our knowledge evolved, we learned that being outside was relatively safe. Thus, restrictions swung in the other direction, with cities allowing private businesses to take over public spaces in ways they hadn’t before. Many places also rethought the balance between cars, pedestrians, and cyclists with respect to the public space made up by streets.3

This Essay confronts the changes to the built environment that have taken place around the world in response to the pandemic. City decision makers currently stand at a critical inflection point as they move their responses to COVID from the pandemic stage to the endemic stage. Many have decided to make once-temporary changes permanent or are discussing whether to do so, while others have decided to take back some of the space that had been repurposed during the height of the pandemic. This Essay will argue that, while these public-realm reclamation and reconfiguration techniques have resulted in many benefits to many people, they have also disproportionately harmed already-underrepresented members of the community in ways that have not been sufficiently discussed or recognized. Thus, before simply assuming that these interventions are a net positive and letting them remain postpandemic, as many cities seem inclined to do, we must first more thoroughly interrogate both their harms and benefits.

Part I of the Essay is descriptive and catalogs a number of COVID-inspired modifications to outdoor public spaces and the built environment. Part II engages in a normative analysis of these attempts to reclaim public space in cities. It discusses the benefits of public-space interventions that allowed people to interact outside more easily during the pandemic but also confronts the harm that these changes have wrought—especially upon underserved communities and people with mobility differences. Part III considers who should be making these decisions and how they should go about doing so. It discusses the legal implications of making pandemic-era changes permanent and presents questions to guide cities in moving forward with modifications.

I. covid-related changes to the built environment

Architects, city planners, and business owners have made significant changes to the built environment in order to adapt to life with COVID. These modifications have occurred outside—in public spaces like streets, sidewalks, and plazas—as well as inside—in office buildings, schools, libraries, and transit hubs. This Part catalogs some of the most salient and common changes cities have made to their outdoor environments.4 Specifically, the majority of COVID-related changes to the exterior built environment of cities have been implemented on sidewalks—through expanded restaurant seating and sidewalk widening—and streets—through closures, expanded bicycle infrastructure, parklets, and pop-up plazas.

A. Primary Sites of Reclamation: Sidewalks and Streets

Sidewalks are public space. Although that seems like a simple concept, the question of what sidewalks are for, and who they are for, is actually quite complex.5 At their most basic, sidewalks are conceived of as spaces where people walk to get from place to place.6 But of course, they have long been more than this, even prior to COVID. They are also places of assembly and protest. They are “third places” where people encounter their neighbors.7 They are sites of commerce where vendors sell food and goods from carts, stores showcase their wares, and restaurant patrons dine al fresco.8 Sidewalks are also a place of respite for those who need to sit down somewhere. They are the site of encampments for those who need to sleep somewhere. They are traversed not just by abled pedestrians, but also by people with mobility differences, and by babies in strollers. These various users and uses are often in conflict.9 And because of these diverse property uses—both legal and not—most cities have a number of regulations pertaining to sidewalk construction, maintenance, and usage.10 The pandemic has thrown sidewalks’ role as public space with competing users into starker relief.

Streets, like sidewalks, are another example of contested public space. Streets make up a majority of publicly owned open space in many cities11 and regularly account for around one-third of a city’s land area.12 And yet streets are often dangerous to members of the public: in 2020, more than 7,000 pedestrians were killed by vehicles, and approximately 104,000 pedestrians visited the emergency room for nonfatal injuries related to car crashes.13 Streets in the United States, after all, are often designed first and foremost for cars, whether in motion or at rest in parking spaces.14 But with safe outdoor public space at a premium during the pandemic, and with far fewer cars on the road in its early stages, many cities looked to their streets to gain additional space for people.

B. The Changes

As evidence emerged that the virus was less likely to infect people gathering outside than inside, cities moved to expand public access to outdoor spaces and to encourage people to spend time outside. Signs reminded people to socially distance by staying six feet apart from others. In many places, however, sidewalks are not wide enough to allow two people to pass each other at sufficient distance without needing to step into the street.

In response, a number of cities opted to narrow their streets to allow for more space for pedestrians and cyclists.15 This was often achieved by turning driving lanes or curbside parking spaces into additional sidewalk space or bike lanes.16 These changes were typically informal,17 using paint, tape, planters, cones, and signs to designate space that might be used by pedestrians or cyclists, or for other specific purposes. For example, Paris added over thirty miles of bike lanes and now has plans to remove over half of the city’s on-street parking and instead commit the space to noncar public uses.18 Berlin created temporary bike lanes by taping off parts of the road.19 And Washington, D.C., focused on expanding sidewalks outside essential businesses, such as grocery stores, to provide more space for people to form lines when stores were limiting or prohibiting entry.20

Another way streets and sidewalks were repurposed during the pandemic was through cities’ expansion of permitted outdoor dining. Although al fresco dining itself is not new, it has historically been limited in many urban areas. Some cities only permitted café seating in certain parts of town or only made it available via a costly permitting process.21 But as many restaurants were forced to close indoor dining rooms during the early days of the pandemic, takeout and curbside dining became lifelines for restaurants and their staff (as well as many patrons who don’t cook).22 In response, many cities expanded where outdoor café seating was permitted, including allowing dining on larger areas of sidewalks, in closed-off streets, in former curbside parking spaces, and in parking lots.23 These spaces, which are sometimes dubbed “streateries,”24 often involved the placement of barriers, dividers, tents, sheds, heated plastic bubbles, and other structures to keep diners warm and protected from vehicular traffic. These structures—many of which were hastily constructed and poorly designed25—typically enclosed tables that were placed in former metered street-side parking spaces. For example, in New York, COVID-inspired outdoor-dining expansions are estimated to have taken over around 8,550 parking spaces (out of approximately three million) as of 2021.26

Cities also modified their streets by reducing parking requirements and expanding existing parklet programs. Parklets, which already existed in a number of cities prior to the pandemic, convert a former curbside parking space in front of a shop or restaurant to open space, filled with tables, benches, or green space rather than parked cars.27 In some cities, these spaces were historically required to be open to all members of the public and could not be privatized by the restaurant or shop that paid for the parklet permit and conversion.28 During the pandemic, some cities waived parklet fees and other permit requirements29 to encourage outdoor dining and assist restaurants and bars that were struggling in the wake of closure requirements.30 Some cities also liberalized their use requirements and began allowing parklets to be used exclusively by adjacent restaurants.31

Finally, another popular COVID-related open-space innovation was what cities referred to as open-streets or slow-streets programs.32 These projects generally closed off streets to all or most vehicular traffic,33 thus allowing space for people to walk, run, roll, ride bicycles, play, do yoga, have picnics, and otherwise inhabit the streets safely. For example, Oakland responded to crowding issues in public parks during the early pandemic by initiating a slow-streets program that eventually involved the closure of more than twenty miles of the city’s streets.34 Seattle’s Department of Transportation similarly closed off twenty miles of streets to vehicles during the pandemic and recently announced that those changes would become permanent.35 In addition to using closed-off road space for movement, travel, and exercise, some cities turned these streets into pop-up plazas or patios where people could sit and relax.

C. Parks, Briefly

Another category of pandemic-era changes to the built environment involved our most classic of public open spaces: public parks. Decades of research have shown the health and wellness benefits that humans derive from spending time in nature and even small green spaces like local parks.36 Yet early on, many parks were closed entirely—gates were locked, basketball hoops were removed, and people were cited or fined for using parks and playgrounds while they were closed.37 These changes disproportionately burdened poor people and people of color (especially Black and Latinx families), many of whom live in apartments and thus do not have their own private green space or backyard.38 Indeed, as one commentator noted,

Virtually all of the arrests and summonses related to social distancing and mask wearing . . . have targeted black and brown New Yorkers. [There is] a disparity in infrastructure that predated the racially motivated enforcement tactics of the crisis. Harlem’s concrete-walled parks remained gated and locked. Meanwhile, the grassy parks of the West Village piers were open.39

Once it became clear that outside was the safest place to be, parks reopened, and many saw more use than was typical.40 In some locations, even typically “exclusive” open space was converted to use by the broader public, such as some golf courses in Australia.41 That said, equity concerns surrounding park access preceded the pandemic. For example, parks in lower-income communities and communities of color tend to be smaller and more crowded than those in whiter areas.42 These and other inequities related to park access and use have persisted beyond the early pandemic period.43

II. evaluating public-space reclamation projects

In many ways, these changes to the built environment in the wake of COVID are beneficial. They allowed restaurants and bars to stay open through the pandemic, serving customers outside when inside dining was prohibited. They allowed neighbors and friends to meet up safely, maintaining community ties. They created vibrancy amid sorrow and fear and instilled a sense of place that often felt missing during the pandemic. And they helped make more efficient use of urban space by repurposing underused parking spaces and lanes.

At the same time, these interventions raise important and underdiscussed equity issues. As I have previously written, the built environment has always been exclusionary—often by design.44 Both our publicly owned spaces and our privately owned public open spaces are governed by exclusionary norms that make them inhospitable to certain members of the community—primarily poor people and people of color.45 And in the pandemic’s wake, it has become increasingly clear that many COVID-inspired public-space interventions are subject to the same failings. This Part will discuss the benefits and harms of these interventions and make some suggestions for cities that are considering making them permanent.

A. Benefits

To be sure, pandemic-era public-space interventions offer important public-health benefits. During early lockdowns, reclaimed streets and sidewalks provided additional space for people to interact safely outside. And as we move into an endemic phase of COVID, individuals at high risk or with unvaccinated family members will welcome the continuing opportunity for spaces to gather and eat with friends that are less likely to expose them to illness. Further, the provision of protected space for walking and cycling created new opportunities for physical exercise and made it easier to avoid driving.46 A reduction in driving could, in turn, lead to decreased emissions,47 better local air quality, and lower incidences of asthma.48 There is also evidence that areas with open-streets programs experienced a decrease in pedestrian, bicycle, and vehicle crashes and injuries.49 Further, as discussed earlier, access to open space has been shown to benefit mental health.50

Beyond health, these changes to the built environment also helped local economies. In many places, restaurants were required to close their indoor-dining services during the early days of the pandemic. By moving their dining rooms onto streets, sidewalks, and parking spaces, restaurants were able to stay open and save jobs.51 More generally, the activation of streets and sidewalks also increased business traffic.52

Finally, the idea of reclaiming public space for people instead of cars makes intuitive sense.53 The pandemic offered a vision of a car-free, pedestrian-oriented city that may lead many residents to reconsider how much land should be dedicated to vehicles.54 Many people enjoy eating al fresco on a breezy spring day. Parents rejoiced that they had a safe, large, closed street where their toddlers could safely ride a bike or a scooter. Car-free streets created space for community events and public programming.55 As a bicycle-advocacy organization stated, “Open Streets are popular, beloved, effective, and lifesaving.”56 When many public buildings were closed, and people were unable to interact with others inside, outdoor spaces became vibrant sites of “the everyday casual encounters that are the basis of social cohesion and community building.”57

With these benefits in mind,58 many cities have permanently extended some of the public-space reclamation programs that began during COVID.59 However, it is important to interrogate both the benefits and the harms associated with these programs before allowing them to continue indefinitely.

B. Harms

Despite their benefits, there are also harms associated with the implementation of many COVID-related open-space programs. This Section points out five such categories of harms: (1) nuisance-like and environmental harms; (2) privatization; (3) disability and accessibility; (4) exclusion; and (5) noninclusive decision-making.

1. Nuisance-Like and Environmental Harms

Although the idea of spending more time outside might sound nice, not all neighbors who live near open streets and streateries have found these changes worthwhile. For these individuals, the interventions may be more akin to nuisances than beneficial additions. For example, in 2021, New York City’s Department of Transportation (DOT) sought to make the city’s Open Restaurants program, which had been enacted on a temporary emergency basis, permanent.60 In response, DOT “received thousands of complaints from residents related to noise, vermin, garbage accumulation, crowded sidewalks impeding residents access—all quality-of-life issues [constituting] a significant impact upon the environment.”61

Although the permitting process for the open-restaurants program in New York was subject to environmental review under the State Environmental Quality Review Act (SEQRA),62 DOT issued a negative declaration, finding that the program would have no significant impact on the environment.63 This decision was challenged in court by neighbors and representatives of neighborhood associations, based on concerns over noise from outdoor dining, insufficient space for social distancing due to the large number of diners on the sidewalks, and problems with garbage and rats.64 Specifically, the plaintiffs argued that the city should have completed a full-blown Environmental Impact Statement, rather than a negative declaration, under SEQRA.65 The court agreed, finding that the sidewalk dining programs “have, at a minimum, impacted traffic and noise levels, and may have significantly impacted sanitation.”66 Thus, the court found the issuance of the negative declaration arbitrary and capricious and ordered a full review under SEQRA.67 It stated that making outdoor dining permanent “warrants nothing less than a comprehensive and earnest consideration and examination of the actual impacts of the already implemented program upon the daily functioning of the City’s sidewalks and streets, as well as the impact upon locally affected residents.”68

Similar nuisance-like complaints were made with respect to open-space programs’ impacts on parking. When San Francisco was planning to make its open-space changes permanent, many citizens voiced concern about the impact of these interventions on parking availability,69 arguing that it was essential that the city take time to “discuss handicap accessibility, how public the spaces should really be, and transportation.”70 Although street-side parking is provided by the government, and is ostensibly open to all, the use of that space (and decisions about its proper use) impacts the value and utility of an abutting private landowner’s property. Thus, those abutters might have complaints that sound like private-nuisance claims—perhaps arguing that if street-side parking is replaced by outdoor cafés, they will suffer because fewer people will be able to drive to their stores, and they will have to abide the noise and crowding on the sidewalks from the additional dining. But the use of street-side parking, whether for car storage, parklets, or outdoor dining, also impacts the experience of those using the streets and sidewalks for other purposes not related to any ownership claim; complaints on this basis sound more like public-nuisance claims.

The value of these sorts of complaints about parking, noise, and crowding is debatable. On one hand, they are similar to common “NIMBY”71 arguments opposing new development of all sorts. Existing residents often want neighborhoods to remain static and unchanging; status-quo bias in the built environment is strong. Thus, it is unsurprising that these same types of complaints would be raised in the face of public-space reclamation projects that aim to make spaces open to new uses and users. On the other hand, public-space interventions are not always an unqualified benefit and do require difficult tradeoffs. Changes to the built environment might upset landowners’ settled expectations and thus might affect property values. Further, as the New York case discussed above suggests, these changes may risk creating genuine environmental harms without corresponding policies and systems—noise, waste management, pest control—to handle them.72

2. Privatization Concerns

Another line of concern related to public-space reclamation projects is that they tend to favor private businesses more than members of the public (or at least, more than some members of the public). Many of the open-streets and sidewalks programs allowed restaurants or businesses to take over ostensibly public space for free, or for a very low fee.73 One commentator described the private use of public sidewalks as “a land grab that privatizes public space for one business industry, commercial landlords, and the customers who can afford the $20 burger and $15 cocktail.”74 The food-and-beverage industry is but one of many that suffered during the pandemic. Yet most other businesses did not get access to the same benefits or use of the public realm.75

In addition to concerns over which private entities benefit from these interventions, there are also broader concerns associated with the privatization of public space.76 As I have noted previously,

[P]rivatized public space is problematic and a poor substitute for traditional public space. It is exclusionary. It segregates. It is sterile. It diminishes opportunities for free speech. It prevents people from different walks of life from interacting with one another. It also raises concerns from a local government perspective: There is a fear of loss of democratic process when corporations and other private entities control public spaces and the public realm more than citizens do.77

For example, San Francisco has long had a parklet program, where a business or neighborhood group could pay to convert a street-side parking space into a public space.78 However, parklets were traditionally public space, required to be open to all members of the public—even those who were not patrons of the establishments that created them. But amendments passed in the wake of COVID now allow businesses to close parklets overnight, the idea being that this will help to preserve business owners’ investments into these outdoor-dining spaces.79

Of course, parking spaces themselves have always been subject to privatization by drivers who pay for their exclusive use.80 And even privatized streateries in parking spaces allow more members of the public to access these spaces simultaneously than when they are reserved for use by individual cars. But the broader phenomenon of restaurants taking over these spaces for their patrons still raises concerns, especially if the price for doing so is low. This takeover evokes what some commentators have referred to as “café creep”: when private dining spaces begin to intrude into public sidewalks, streets, and parks, where should it stop?81 How much of our public space should be dedicated to private, paying users versus to all members of the community? For example, café sidewalk expansion results in an ironic (if unsurprising) situation in some towns that have “move along” ordinances or other laws criminalizing homelessness. In these locations, an unhoused person or a person who is panhandling might be fined or even arrested for sitting, loitering, or resting on the sidewalk.82 In contrast, a person paying for an expensive meal at a restaurant while sitting in a parklet or at a sidewalk café table is free to occupy that space as long as they like. These outcomes are unfair and alienate certain residents—especially those who cannot afford to eat at the streateries in their communities.83 Here, perhaps cities might want to consider a hierarchy in order to balance these competing interests or set aside certain portions of space for each use. For example, use of publicly owned space by people is almost always preferable to use by cars (whether the people are paying to be there or not); thus, the percentage of space dedicated to cars should be much lower than that dedicated to people. But cities should also prioritize the use of public space, like sidewalks and streets, for use by all members of the public, not just those who can pay. Thus, cities should assure that a higher percentage of their public space is open to all than the percentage that is privatized.

3. Disability and Accessibility

One of the major concerns that commentators have raised about COVID-related open-space interventions is accessibility. And while some streateries in New York have been removed for physical violations, including “blocking a fire hydrant, blocking a bus stop and blocking a bus lane,”84 others that pose risks to disabled people remain. Sidewalk café seating can be especially bothersome, and even dangerous, for people using wheelchairs. Sidewalks and streets crowded with tables, chairs, and people waiting to be seated can make it difficult for those using wheelchairs or other mobility aids to fit past.85 If the sidewalk is blocked in this way, a person using a wheelchair might need to “turn back and roll into the street[, which could put them] at high risk for death by traffic.”86 Similarly, even if the sidewalk itself is not overcrowded, the placement of tables and chairs in streets and parking spaces can create the need for delivery vehicles or others to park in undesignated spots. Thus, if a van is blocking a curb cut, this might make it very difficult for a person using a wheelchair to leave the sidewalk in order to cross the street.87

As a result of these and other issues, lawsuits have been brought challenging various aspects of pandemic-era public-space changes. For example, there have been a small number of lawsuits brought against restaurants with sidewalk and street seating under the Americans with Disabilities Act (ADA).88 In response, one court has held that the ADA applies not only to built-in street furniture, but also to tables that were temporarily placed on sidewalks and used for outdoor dining during COVID restrictions, though the issue is still novel.89 Thus, litigants have claimed that some of this temporary outdoor seating was not accessible to wheelchair users.90

The merit of these claims is contested. Several of these cases appear to have been filed by serial ADA litigants; a recent court decision found that one of these litigants was not credible and thus lacked standing to sue.91 Further, district attorneys in San Francisco and Los Angeles recently filed a lawsuit alleging unfair business practices by the California law firm behind many of these ADA lawsuits.92 There is also evidence that these claims disproportionately impact small businesses that are owned by immigrants and non-English speakers.93 While a full discussion of the ongoing debates over ADA litigation reform is beyond the scope of this Essay,94 it is at least possible that postpandemic sidewalk policies may be a key battleground in this debate. At base, these conflicts are another illustration of the disputed nature of public space and the ways that changes to the built environment involve trade-offs between competing needs of different urban populations.

Some cities have responded to these concerns by creating accessibility guidance for al fresco dining. For example, San Francisco now requires that restauranteurs “[a]void blocking anyone’s ability to pass safely, including avoiding blocking ADA-compliant sidewalk access.”95 Of course, from a restaurant’s perspective, every additional table they can squeeze in outdoors provides another opportunity to remain afloat. This produces an inherent conflict between ADA compliance and the restaurant’s bottom line.96 To address these concerns, the new “Shared Spaces” permits in San Francisco require restaurants to submit a site plan to show ADA compliance and post a public notice for the space.97 The new legislation also imposes more extensive requirements for parklets located at intersections because of safety concerns.98

A related mobility concern involves people who cannot easily ride a bicycle or walk (or do not feel safe doing so—often for reasons related to race99), as well as those who are completely reliant on a car for their mobility needs. The closure of many city streets interrupted car commutes for some drivers, as well as delivery routes for essential workers.100 For others, the loss of parking spaces to public space has made it more difficult to physically access different parts of the city.101 These concerns were raised by mobility-justice advocates in response to some open-streets programs and must be considered by localities in the process of adopting new open-space rules.102

4. Exclusionary Environments

As with concerns about physical accessibility, there are other ways spaces can be exclusionary—even when technically open to all.103 As I have written about previously, the location of public space and the norms that govern its use and users often create exclusionary environments where people feel “othered,” or unwelcome.104 The reclamation of space for people, rather than cars, in the wake of COVID has raised many of these issues. Even if parklets or streateries are technically open to all, if most of the people using them are well-dressed patrons of nearby restaurants, this creates a norm of exclusion for those who might not fit that mold. Indeed, research from Seattle suggests that members of the public there generally did not view streateries as public space.105

COVID-related open-space interventions invite questions not only about who feels most comfortable using them, but also about where these spaces are located. For example, many cities disproportionately implemented open-streets and sidewalk programs in wealthier neighborhoods, which were often composed of single-family homes with backyards and thus had less need for additional public open space. In a number of cities, including New York,106 Philadelphia,107 Edmonton,108 and Oakland,109 the open-space programs that were initially put in place primarily benefited wealthy or white residents.110 There are a number of potential reasons for this—including structural racism and a failure to include poorer neighborhoods or communities of color in the planning process.111 Some commentators suggested that the demand for additional recreational open space was coming mainly from white people who were staying home due to COVID concerns.112

The City of San Francisco’s Board of Supervisors recently voted to permanently preserve the COVID-related closure of John F. Kennedy Drive in Golden Gate Park to car traffic.113 One supervisor had argued that the closure was a “segregationist” policy.114 He explained that his constituents, many of whom were Black, were left out of the conversation about closing this access route through the park115 and that many lacked bikes or easy access to public transportation.116 Yet the car closure meant only those with easy access to the park would be able to take advantage of its car-free streets.117 This example illustrates how moving away from a car-centric model has the potential to disproportionately impact lower-income communities and communities of color. A long history of structural racism, federal policies, and wealth inequality has left neighborhoods across the United States divided by race.118 Many racially minoritized people are thus unable to live in expensive, central urban areas, and instead must commute into the city for work and leisure from suburbs or other areas that are not easily accessible via public transportation. When streets are closed to cars or parking spaces are repurposed, those who rely on their cars for access often suffer.

The broader problem here is that local elected officials often respond only to constituents with power.119 Thus, many of these policies may have been implemented without sufficiently considering who would be excluded as a result. And while the location piece of this concern is primarily an issue of siting, rather than of the content of the programs themselves (and thus can be fixed going forward), the deeper points about exclusionary norms are perhaps inherent in the interventions.

5. Quick Decision-Making and Lack of Public Participation

Finally, another potential harm involves the process through which temporary programs were adopted. Because many open-streets programs were adopted on a temporary, emergency, or pilot-project basis, their implementation often involved less public comment or participation than a typical planning or zoning decision.120 This also resulted in the rapid construction of, and use of subpar materials to construct, some of these features.121 For example, urbanist John Bela noted “the proliferation of low-quality, poorly designed, and potentially dangerous commercial outdoor dining platforms” during the pandemic.122 As he recognized, “[m]any of these spaces feel opaque and claustrophobic, blocking visual access to ground floor retail and obstructing city sidewalks.”123 Instead, he suggests that cities adopt rules requiring streateries and patio dining structures to “adhere to basic good design principles like a 42-inch height maximum for surrounding enclosures; 50 percent transparent walls; and a direct, accessible connection to the adjacent sidewalk in order to generate the public benefit of vibrant, lively streets.”124

These quick decisions have also led to at least one lawsuit. A lower court in Berlin struck down some of the city’s COVID-inspired pop-up bike lanes.125 Opponents of the lanes argued that they were being put up quickly, and that the city was taking advantage of the pandemic to push an anti-car “agenda.”126 In response, the city argued that the lanes had been put in place on dangerous roadways to make biking safer, but the court found that claim unsubstantiated.127

Some cities, recognizing that they failed to involve the full spectrum of the public in initial rounds of open-streets decision-making, have modified their approaches.128 For example, Oakland now has a process for incorporating community input to determine where interventions are needed.129 Seattle’s Department of Transportation recently conducted an “outdoor dining and retail survey” in pursuit of a permanent program.130 Unlike some other cities that rushed to permanency, Seattle indicated it wanted to carefully craft its program and intentionally sought more community input.131 Chicago is currently seeking proposals from community organizations for its outdoor-dining program.132 Again, this should be a fairly easy problem to solve moving forward; rather than simply converting their programs from temporary to permanent, cities should take time to consider a broad range of voices regarding what has and has not worked. That said, cities should also recognize that public-comment processes have historically been weaponized by neighborhood residents seeking to block socially beneficial changes, preferring the status quo.133 Thus, the value of mandating community input may depend significantly on which interests are being served, and who in the community ultimately benefits.

III. moving forward

Today, cities around the world are considering whether to convert once-temporary interventions into permanent public-space projects. In so doing, many have come down on the side of retaining the expanded public spaces created during the pandemic, often viewing this as a step toward healthier, more resilient, and more sustainable cities.134 However, it is unclear to what extent decision makers have considered or balanced the competing concerns raised in this Essay. This final Part will consider how these decisions should best be made and who should be making them.

A. How Should Decisions Be Made

How should policymakers decide whether and to what extent changes to the built environment that were implemented in the wake of COVID should be retained? There is a real risk that cities will uncritically accept that programs like Open Streets are “popular, beloved, [and] effective,” and institutionalize them as is without considering the harms discussed above.135 On the other hand, there is also a concern—which has already been borne out in some places—that cities will eliminate large parts of their temporary public-space programs as they remove other emergency pandemic measures.136 A more measured approach would center mobility and accessibility justice alongside considerations of economic support for businesses, the health needs of the community, and the value of additional open space for neighbors to exercise and socialize.137

While many cities have become more intentional about considering diverse views in recent years,138 this has traditionally been uncommon. Although the specific politics might vary across communities, local-government decision-making often favors parties with power. Two influential models for who has historically wielded power in cities and suburbs are William A. Fischel’s “homevoter hypothesis,” which centers homeowners,139 and the “growth machine” model, which centers developers.140 From an economic perspective, developers might prefer that COVID-related public-space interventions remain. Recent research suggests a correlation between proximity to outdoor dining and both commercial and residential property values.141 And there certainly is such a correlation regarding proximity to open space more broadly.142 The calculus for homeowners, however, is less straightforward. While many homeowners might appreciate the additional space they have gained to safely bike and walk,143 communities of color have not generally received the same beneficial changes as whiter communities.144 On the other hand, as the New York SEQRA lawsuit demonstrates, not all residents appreciate these interventions, and some may use legal processes to block public-space projects that would benefit the city more broadly.145 Thus, the default outcome for many COVID-related public-space changes may be to retain those that are popular with powerful property owners and discard those that are unpopular. Knowing this, decision makers must be intentional when evaluating public-space reclamation projects, in order to counteract these trends when they result in clearly inequitable ends.

Some communities have taken steps towards this ideal. Examples include the expanded community-input processes from Oakland, Seattle, and Chicago mentioned above.146 Further, San Francisco recently passed “Shared Spaces” legislation that “[p]rioritize[s] equity and inclusion by prioritizing City resources for communities most impacted by historical disparities with funding, materials and grants [and] [e]nsure[s] that the needs of the disabled community are accommodated.”147 In pursuit of this goal, the legislation not only focuses on participation, but requires the collection of data and user feedback.148 It then requires the city to evaluate that data “in various areas, including racial equity, transportation, the environment, public access, economic impact, type of activities, and community engagement.”149 The legislation also specifically seeks to balance the need for these spaces in the public realm to be open to the public, while also acknowledging that “time-specific commercial use of Curbside Shared Spaces by businesses in suitable locations” is appropriate for economic purposes.150 San Francisco has sought to strike this balance by requiring streateries located in street-side parking spaces to be open and accessible to the public during daylight hours when the restaurant or bar is not open.151 The city is also in the process of issuing “equity grants” to aid businesses in making Shared Spaces accessible, and is prioritizing those grants in communities hard hit by COVID, or in other underserved and vulnerable areas.152 While the legislation is still new and relatively untested, San Francisco has long led in public-space projects, and other cities have historically followed its lead.153

B. Who Should Decide

Regardless of how a given city comes down on the question of whether to make COVID-related public-space changes permanent, another key question should be which institutional actors within a local government should be responsible for determining whether to retain and how to regulate these changes. Should these decisions be placed solely in the hands of political actors, like local mayors or city councils? Should the responsibility for their administration lie with planning departments, appointed planning boards, business-improvement districts, health departments, public-works departments, community and economic-development agencies, or transportation departments? A combination of these? At base, it might make sense to allocate these responsibilities to the city agency that already has jurisdiction over the pieces of the public realm that will be included in the programs. Yet in many cities, rights of way are fragmented and jurisdictions overlap. For example, municipal codes, which are revised and adopted by city councils and administered through city departments, have been the locus of permitting requirements for sidewalk-café seating; the permits themselves may be issued by any number of different agencies, including the local department of transportation, the planning department, the department of consumer affairs, the department of public works, and other development divisions.154 The parklet program in San Francisco was originally headed by that city’s Planning Department,155 while Boston’s parklets program was headed by its Transportation Department.156 Many of the public-space reclamation projects discussed in this Essay have been spearheaded by local departments of transportation157—especially those located in public rights of way—though some also incorporate partnerships with planning departments.158

In deciding which local entity or agency should handle the permitting and decision-making, it is important to recognize that some of these public bodies are subject to greater public input and interaction than others. Local politicians regularly hear from constituents, but their elected status creates the risk of capture by powerful local interests or influential property owners.159 Planning boards and planning departments—which are at least ostensibly apolitical—are used to soliciting input from neighbors on development projects that will change the local built environment, and many citizens are familiar with those hearings processes.160 In contrast, while some city health and transportation departments might hold public hearings and solicit public input, those processes might be less familiar avenues through which to seek change in one’s immediate neighborhood. Of course, the points raised earlier about the value of public comments—who typically attends public hearings, and who public bodies are responsive to—still hold true here.161 Thus, housing public-space expansion programs within agencies that have fewer built-in processes for community input could lead to less NIMBYism, but also to fewer opportunities to hear from underrepresented segments of the community.

Another factor to consider is that the unelected professional employees who make up the workforce in these different departments may see the world differently through the eyes of their professions. Planners and traffic engineers often approach problems differently: while planners tend to focus on physical features of the built environment and the interaction of people in those places, traffic engineers are often more focused on what Professor Nicholas Blomley has called “traffic logic”—a focus on efficiency and moving people through places, with an eye toward civil engineering rather than civil rights.162 Similarly, transportation engineers might have a great deal of experience with roads and projects in the public way, but they might have less institutional knowledge when it comes to regulating built structures or places for people.

Cities considering where to place these responsibilities should consider not only who can best interact with a wide swath of the community to seek input, but also who will best be able to implement the actual requirements of the program. For example, from a legal perspective, permanent interventions often require different steps from temporary ones. While some restaurants might have been allowed to have tables on the sidewalks under an emergency public-health order when restaurants were closed to interior dining, making streateries permanent will require modifications to the zoning code in many cities. Take New York: prior to the pandemic, there were geographic limitations in the zoning code about where sidewalk cafés could be located.163 The city is now proposing a zoning amendment that would allow this type of seating throughout the city.164 Thus, the Department of City Planning, along with neighborhood planning boards and the City Council, will take the lead on these types of changes.

In contrast, when projects become permanent, more permanent infrastructure is frequently needed, and that infrastructure is often within the purview of the city’s department of transportation. For example, when bike lanes were added at the start of the pandemic, these were often done informally, with movable cones or tape. But making these changes permanent will involve infrastructure investment—road reconstruction, bollards, or painting. Placing café tables in a former parking space is fine for a temporary parklet or streatery, but permanent improvements might include things like wooden bases, planters, railings, and guards, as well as thoughtful design standards and enforcement of those standards. Similarly, permanently expanded sidewalks might require pouring concrete or creating bump-outs into what was a parking space or a right of way.165 Cities will also have to navigate where this funding will come from: are these true public spaces that should be funded by tax dollars, or are they private benefits that should be paid for through direct expenditures and permitting fees from those who will most directly benefit from the permanent infrastructure?

Although there is no one-size-fits-all solution that will make sense in every locality, cities should seek to house these responsibilities with the entity (or entities) that can most easily consider the needs of diverse stakeholders, but also envision the city as a whole in implementing shared spaces and open streets projects.166 Further, even if a given city decides that different agencies are needed for different types or locations of public-space projects, they should still endeavor to create a central agency that can serve as a point of contact for all the diverse stakeholders who have an interest in the public realm—business owners, abutters, and community members. In many instances, the city’s planning department will be the most obvious choice for this outward-facing role, given its experience managing similar projects. The chosen entity could then have direct reports with other agencies or departments, like public works or transportation, for specific types of permitted projects, such as open streets or parklets.

IV. conclusion

The COVID-19 pandemic has led to profound physical changes in the built environment that are, in many places, here to stay. Cities must therefore consider how to ensure these changes are useful, sustainable, and equitable. This will require decision makers to consider the benefits and harms of interventions, as well as the needs and desires of all members of the community. Indeed, many of the harms addressed in this Essay would not be that difficult to alleviate, although the tradeoffs must be recognized as well. For example, cities can consciously site these interventions in more diverse neighborhoods; they can adopt more inclusive outreach processes in deciding whether to make these spaces permanent; and they can require private owners or lessees who will be using public space to comply with thoughtful design, accessibility, and use requirements (and perhaps issue grants to make the process more palatable and financially feasible for small-business owners). Creating more public space for people in cities is a worthwhile goal, but the space needs to truly be for all people.

Professor of Law, Maxine Kurtz Faculty Research Scholar, and Director of the Environmental and Natural Resources Law Program, University of Denver Sturm College of Law. I’m grateful to the Yale Law Journal editors for inviting me to participate in this Collection. Thanks also to Michael Pollack, Vanessa Casado Pérez, Barbara Schindler, and the participants of the 2022 Annual Meeting of the Association for Law, Property, and Society for comments. Deep appreciation to Emily Maino and Audrey Oliver for outstanding research assistance throughout.