Public Space or Private Profit? ‘Streateries’ and the Need to Reclaim the Public Realm in the Post-Pandemic City

The pandemic brought with it the entrenchment of a massively trans-formed cityscape. From car-free streets to widespread private dining in parking spots, what began as a series of temporary municipal authorizations have since transitioned into permanent programs. For some, these urban changes are unalloyed goods—who doesn’t want to drink al fresco at 3pm on a sunny day on the corner of Prince and Broadway? Yet, debates on sidewalk cafés and the transformation of our city streets have not fully grappled with the privatization problem, or the legal contours of this new property rights regime.

This Note seeks to take up that task. By tying together sociological theory and traditional property law, this Note argues that pandemic-era ‘streateries’ improperly privatize our once-public streets and sidewalks. ‘Streateries’ differ in kind from prior commercial uses of our sidewalks and pose unique normative issues, ranging from inclusivity, political speech, and threats to the community-building function of public space. The Note uses its core privatization argument to offer a novel prescriptive approach for cities looking to pass permanent legislation for outdoor dining. The prescriptive approach involves the “publicization” of dining structures, which would ensure that restaurants incorporate offsetting public benefits—whether through flexible public uses or the aesthetic enhancement of dining structures—to balance out the privatization of our city streets.