In Toronto an important debate is starting to stir about who controls the sidewalks – the city or the owners of the adjacent properties.
Sparking this debate is a bicycle owner, Lisa Ferguson, who thought her bike was stolen when in fact a store had removed it and placed it in storage as part of a move to make the sidewalk more pedestrian friendly. In the end, Ferguson got her bike back (and was reimbursed for her broken lock). Still lingering is the unresolved question of who owns the sidewalk (or more correctly, who cares for it).
As a public space, multiple interests compete to use sidewalks. Bicyclists sometimes ride on them, though more often only use them as parking spaces. Pedestrians rely on them to hoof it around the city. Stores often use them for promotional purposes. Balancing these at times conflicting interests is tricky business.
Enter Larissa Katz, associate professor at the University of Toronto Faculty of Law, to try to distill the important points of the case.
As Katz clarifies, the distinction between public and private property in cities, like Toronto, is not “so crisp.”
The City of Toronto governs through its employees and licensees. But it also “governs through owners:” private owners are called on to discharge a variety of public burdens, many of which concern public sidewalks.
So private owners such as Brookfield, as well as private homeowners, are in charge to some extent of public spaces: They are responsible for shovelling snow in winter and clearing ice in the parts of the city where mechanical cleaning is not cost-efficient or practicable for city workers. Owners are also responsible for keeping public sidewalks free of encumbrances to pedestrian traffic. This is clearly a public task: owners are to take charge of public spaces for public purposes. In ridding public sidewalks of encumbrances, owners are not meant just to protect access to their own property; they are meant to safeguard the public’s right to move freely along passageways.
This all seems pretty normal for most city dwellers. We wake early in the winter months to shovel our driveways and sidewalks in front of the house. I wouldn’t say it’s due to the cost-efficiency of having a myriad of citizens doing the work (though it’s true that many hands make for light work), but rather from a sense of civic responsibility that the sidewalk in front of our homes is an extension of us – we want to be good neighbours by not being the only house on the block with a snow filled sidewalk.
Katz overreaches a bit in her description of this implicit agreement between cities and residents:
What does it mean, then, to “govern through owners?” It means that the state can conscript owners to perform important public services. But responsibility must come with authority: the owner obligated to clean a street or remove encumbrances must have the authority to do what is required.
It’s a bit of a stretch to say that the state can “conscript” owners to do services it doesn’t want to do. Even important services, like snow removal in the winter.
If we rely on such an argument, where does one draw the line? Shoveling snow is not that big a feat for most of us, but what of larger tasks? Should Toronto “conscript” its residents to take their own garbage to the landfill? How about manage the potholes that litter the streets. Or even just clean up the litter from the streets? There are all sorts of tasks that I am sure the city would love to save a few bucks on by placing in the hands of its citizens.
Katz starts by noting the problem is the ambiguity between public and private spaces, and tries to solve it by arbitrarily assigning the state powers to decide which tasks private citizens must perform on public property.
It’s easier to just start by recognizing that there is no such ambiguity between public and private property, but rather that public property suffers from some problems that the private sphere does not. Thorny issues like snow shoveling responsibility melt away once one realizes that the problem of “who should do it” doesn’t exist when we talk about our own lane ways, but only when we extend the question to the city’s street.
Instead of accepting the state’s “powers of conscription” to arbitrarily set the rules, why not nip the problem in the bud by minimizing, or eliminating, public property?