Urban Transportation Problem

THE URBAN TRANSPORTATION PROBLEM GILBERT PAUL VERBITt TABLE OF CONTENTS 1. INTRODUCTION ........................................................... 369 II. THREE VIEWS OF THE PROBLEM ................................ 372 A. The TransportationDisadvantaged ........................ 372 1. The Young .................................................... 373 2. The Elderly ................................................... 373 3. The Handicapped ........................................ 377 4." The Poor ....................................................... 378 5. Summary ....................................................... 388 B. Congestion ............................................................388 C. The Automobile Commuter .................................... 390 III. SYSTEM COSTS OF AUTOMOBILE COMMUTING ............ 392 A. The Automobile as an Energy Water ..................... 392 B. The Automobile as a Polluter ................................ 394 C. The Automobile as a Tortfeasor ............................. 397 D. The Automobile as a Space Waster ........................ 398 IV. THE URBAN MASS TRANSPORTATION ACT OF 1964 .. 401 A. The Act's Preferencefor Rail Rapid Transit .......... 401 B. The Basis for the Act's Preference for Rail Rapid Transit ................................................................. 412 1. Potential Benefits Examined ........................ 413 a. Cost ............................................................ 413 b. Speed .......................................................... 414 c. Labor Savings ............................................. 416 d. Diversion of Automobile Traffic ................... 417 2. The Argument for Rail Rapid Transit Re- butted ............................................................ 418 V. W HY COMMUTERS DRIVE ........................................... 425 VI. LIMITING AUTOMOBILE COMMUTING ......................... 431 A. Traffic Restraint .................................................. 433 B. Traffic Restriction ................................................ 438 t Professor of Law, Boston University. B.S. 1957, University of Pennsylvania; LL.B. 1960, Yale University. Member, District of Columbia and Massachusetts Bars. 1975] THE URBAN TRANSPORTATION PROBLEM VII. STREET USE PLANNING .............................................. 445 A. The Power to Restructure Street Use ...................... 446 1. Delegation of Authority from State to Mu- nicipality ........................................................ 446 2. The Validity of Restructuring Street Use ... 449 B. The Abutter's Rights ............................................. 454 1. The Right of Access and Compensation ..... 456 2. Abutters' Rights and Street Use Planning- Special Problem s ........................................... 468 a. The "Piazza"Principle ................................ 468 b. "Squeezing". ............................................... 470 c. Leveling ...................................................... 470 C . Vacation ............................................................... 472 1. Vacation Defined .......................................... 473 2. Procedural Problems .................................... 475 3. Problems of Reversion and Compensation . 479 D . Special Benefits .................................................... 482 V III. CONCLUSION ............................................................... 487 I. INTRODUCTION The Urban Mass Transportation Act of 19641 is the framework of the legislatively determined solution to the urban transportation problem. In accordance with that solution, billions of dollars of public money have been expended and billions more will be.2 The purpose of this Article is to examine the Act and the solution embodied therein critically. The analysis will begin with an attempt to identify the problem, which is by no means self-evident. In particular, discussion will focus on the three aspects of the problem embodied in the Act. The first of these is the plight of the "transportation disadvantaged"-those who lack access to an automobile in an age when such access is a prerequisite to minimum mobility. The second facet of the urban transportation problem to be discussed is "congestion." Astronomic sums have been expended to relieve traffic congestion in urban areas but the solution continues to elude us. Champions of the Act believe strongly that it will at long last lead to elimination of the congestion problem. Finally, 1 49 U.S.C. §§ 1601-12 (1970). 2 See text accompanying notes 158-180 infra. UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 124:368 we shall examine the automobile 'journey to work" as an urban transportation problem. The analysis will lead to the conclusion that the journey to work is the urban transportation problem. Upon examination, the issue of the "transportation disadvantaged" shrinks to a size that is virtually de minimus and even this residuum appears to present an issue of public transportation though not of mass transportation. And "congestion" will be seen to be more a solution than a problem. The automobile journey to work is the urban mass transportation problem because it is the only category of transportation for which mass transportation is a viable alternative. Before dis- cussing how drivers and passengers might be shifted from automobiles to mass transportation vehicles, however, it is neces- sary to examine why this need be done. Thus the Article will analyze the social costs of automobile commuting and, in particular, the social evils of pollution, energy waste, accidents, and misallocation of urban land. Although the verdict here will be "not proven," the Article will proceed on the generally accepted assumption that society will benefit from the diversion of traffic from automobiles to mass transportation. The issue, then, is how to achieve this end. The heart of the Urban Mass Transportation Act and the channel into which most of its vast resources have been poured is the idea that a sufficient number of commuters will be lured from their automobiles by the improvement of existing mass transportation systems and the construction of new systems. It will be argued that this thesis is at best wishful thinking and that it is destined to fail in terms of its stated goal. The Act will be examined a priori in the light of studies indicating why commuters prefer automobiles to mass transit vehicles. The negative conclusions about the Act that flow from this analysis will be bolstered by data indicating exceedingly low diversion figures, and even lower figures for the decline in automobile trips to work, when commuters are offered modern mass transportation. It will be concluded that the Act fundamen- tally misconceives the urban transportation problem as a tech- nological one when in fact the problem is behavioral. Assuming that the urban transportation problem is one of commuter behavior, various systems that purport to affect commuter behavior will be explored. Systems that attempt to induce commuters to use mass transportation will be disposed of quickly and discussion will focus on barriers to automobile commuting, 1975] THE URBAN TRANSPORTATION PROBLEM which are grouped into traffic restraint and traffic restriction systems. While some of these systems are effective in discouraging automobile commuting, they share with the Act a common defect: Like the Act they treat transportation as an end in itself instead of as a means of moving between two fixed points. In particular, neither the solutions encompassed by the Act nor systems that discourage automobile commuting improve the attractiveness of the urban area as a workplace. In fact, the mass transportation "improvements" envisaged by the Act may affect the urban environment as negatively as the now-rejected urban highways. The auto commuter may love his car more than his job; if so, the trend toward living and working in the suburbs will accelerate. The optimal solution to the urban transportation problem, therefore, would discourage automobile commuting and would act to improve the attractiveness of the urban area. Such a solution can be found if one reconceives the urban transportation problem as a land planning problem. Present planning has allo- cated up to twenty-five percent of all urban land for use as a ' '3 "street, without making any more sophisticated judgments about a street's use. Streets are subject to the demands of a variety of competing uses just as is the land abutting those streets. While use categorization for the latter areas began with the classic triumvirate-industrial, commercial, and residential -and has since been refined ad infinitum, streets have, with rare exceptions, remained streets. The failure to recognize the possi- bility of competing street uses has permitted the bad mode of transportation (private automobiles) to drive the good mode (mass transportation) from the streets. The present task, then, is to right the balance by adopting a system of zoning streets for particular categories of use with a view toward discouraging automobile commuting and improving the attractiveness of the urban area. Implementing this solution will require mastery of a complex body of real property law. The legal principles involved will be examined in Part VII of this Article. This Article thus represents an attempt to accept the invitations extended by planners such as Jane Jacobs, Victor 3See J. MEYER, J. KAIN & M. WOHL, THE URBAN TRANSPORTATION PROBLEM 311 (1965) [hereinafter cited as MEYER].

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