1. Energy Conservation in Transportation By Steve Bauer and Josh Basofin

2. Three-pronged Policy Initiative: Expansion of Regional Rail Systems Implementation of Growth Management Legislation Establishment of Gasoline Taxes to Incentivize Rail and Associated Public Transit Use

3. Problem Addressed: Excessive Energy Consumption in Transportation As a Consequence of Over-Dependence on Automobiles

4. Conclusions: Rail expansion, growth management, & gasoline taxes, when implemented in conjunction with each other, are effective means to reduce U.S. energy consumption. However, this three-pronged initiative is a time intensive process and therefore does not provide an immediate solution. Furthermore, political considerations may constrain implementation of one or all prongs of this initiative.

5. History of Public Transit in the US 1630 Boston--reputed first publicly operated ferryboat 1835 New Orleans--oldest street railway line still operating (New Orleans & Carrollton line) 1883 New York--first publicly operated cable-powered line (Brooklyn Bridge) 1904 New York--first electric underground (& first 4-track express) heavy rail line (Interborough Rapid Transit Co.) 1938 Chicago--first use of federal capital funding to build a public transportation rail line 1946 highest-ever public transportation ridership (23.4 billion) 1972 public transportation ridership hits all-time low (6.6 billion)

6. Types of Rail-Based Public Transit Light Rail Monorail Personal Rapid Transit Heavy Rail Commuter Rail

7. Light Rail Monorail - n. 1. A single rail serving as a track for passenger or freight vehicles. In most cases rail is elevated, but monorails can also run at grade, below grade or in subway tunnels. Vehicles are either suspended from or straddle a narrow guideway. Monorail vehicles are wider than the guideway that supports them. Personalized Rapid Transit – a type of Automated People Mover (APM). Small vehicles available for exclusive use by an individual or a small group, typically 1 to 6 passengers, traveling together by choice and available 24 hours a day. Direct origin to destination service, without a necessity to transfer or stop at intervening stations. Service available on demand rather than on fixed schedules.

8. Heavy Rail Heavy rail refers to traditional high platform subway and elevated rapid transit lines. Principal characteristics: Operation over rights of way that are completely segregated from other uses, with the track placed in subway tunnels, on elevated structures, or on fenced surface rights of way, free of grade crossings with roads. Trains have two to 12 cars, each with its own motors, and drawing power from a third rail (or in some cases from overhead wire).

9. Heavy Rail (cont’d) Boarding is from high platforms that are even with the floor level of the car, allowing large numbers of people to enter and leave rapidly. Before World War II, true heavy rail rapid transit systems existed only in Boston, New York, Philadelphia, and Chicago. Since the war, new systems have been opened in Cleveland, Baltimore, Washington, the San Francisco-Oakland region, Los Angeles, Atlanta, and Miami.

10. Commuter Rail Commuter rail refers to passenger trains operated on main line railroad track to carry riders to and from work in city centers. The trains are normally made up of a locomotive and a number of passenger coaches. The coaches are dimensionally similar to intercity (Amtrak) coaches, but typically have higher density seating as the average ride is shorter. Commuter rail lines normally extend an average of 10 to 50 miles from their downtown terminus. In some cases service is only offered in rush hours. In other cities, service is operated throughout the day and evening and on weekends.

11. Commuter Rail (cont’d) Commuter rail systems are traditionally associated with older industrial cities such as Boston, New York, Philadelphia, and Chicago, but in recent years new diesel powered commuter rail systems have been inaugurated in cities as diverse as Los Angeles and Burlington, Vermont, as traffic congestion has made auto commutes much more difficult. Many additional cities are planning commuter rail lines currently. Relatively inexpensive to build as they normally operate over existing rail lines. However, typical planning challenges are negotiating use of the tracks with very busy freight rail operators and finding adequate funding both for construction and for operating subsidies.

12. Existing State of Rail-Based Public Transit Nationwide From DC to Portland, Cities across the country have a wide variety of public transit systems.

13. Some Examples BART – San Francisco Runs partially under the Bay MAX – Portland Runs exclusively on street level METRORAIL – Washington, D.C. Runs partially underground and partially on street level

14. Cars vs. Public Transit Decreases in Public Transit Ridership Coincide with Increases in Car use.

15. Public Transit Ridership Statistics

16. Car Usage Statistics US population in 1969: 202,677,000 US population in 1995: 263,082,000

17. More Transit and More Cars? While public transit ridership continues its upward trend, the number of vehicles on the road and the number of miles driven is also increasing. In short, Americans are using both modes of transportation at higher rates.

18. The Solution: Dethroning the Car! By Increasing Public Transit Ridership The words of John Muir – “Tug at anything and you will find it hitched to everything else in the universe” may be better stated as: “Tug at anything and you will find it hitched to an automobile”

19. Methods to Dethrone the Car… Reduce Dependence Upon Automobiles Increase Public Transit Ridership

20. Aspects of Increased Ridership Increased Ridership means: Accommodating new riders on existing rail lines Better serving urban and suburban communities

21. INCREASED RIDERSHIP A Chicago Area Case Study

22. Accommodating New Riders On Existing Rail Lines The current metropolitan system can accommodate nearly a 25% increase in ridership. Beyond that, new rider accommodation entails more frequent service, more cars, or rail extension.

23. Is Extension of Existing Lines Necessary to Better Serve Chicago Area Communities?

24. Metra is Currently Planning Several Extensions North Central Service Expansion SouthWest Service Improvements and Extension Union Pacific West Line Extension

25. The Reality: Rail extension is necessary to make public rail transit a more viable solution for all. Light rail, buses, and/or transit oriented development are necessary to fill the gaps.

26. Potential Legal Implications Associated With Rail Extension Nuisance Claims Takings Claims Relocation of Public Utilities Claims

27. Nuisance Claims Among those things applicable to rail transit that are known to constitute a nuisance are: That which annoys and disturbs property, rendering its ordinary use uncomfortable Annoyance; anything that essentially interferes with enjoyment of life of property Interference by means of noise, vibration, etc.

28. Common Classifications of Nuisance Public Private Mixed

29. Public Nuisance Affects an indefinite number of persons or all the people within a particular locality Caused by failure to perform a legal duty Intentionally causing or permitting a condition to exist that injures the public

30. Private Nuisance Affects ONLY an individual or a few persons Includes any wrongful act that: destroys, deteriorates, interferes with or hinders use or enjoyment, or causes a special injury different than that sustained by the public Importantly, a private nuisance can constitute a public nuisance and vice versa…

31. Mixed Nuisance Both public and private in its effects Injures many persons or all of a particular locality Produces special injuries to private rights

32. Further Classifications of Nuisance Nuisance per se Nuisance in fact (a/k/a Nuisance at law)

33. Nuisance per se An act, occupation or structure that is a nuisance at all times and under all circumstances Location and surroundings are irrelevant Injury is certain to be inflicted in some form

34. Nuisance in fact Similar to nuisance per se Act, occupation, or structure Location and surroundings ARE relevant May become a nuisance by reason of the particular location and surroundings May become a nuisance by reason of the manner in which it is performed or operated

35. Would Construction of New Rail Lines in Areas of Existing Development be Prone to Nuisance Claims?

36. Case Law is Clear as to Nuisance Claims from Use of Rail Systems for Private Purpose… “The universally accepted rule is…that the operation of a lawfully constructed railroad in an ordinarily prudent and careful manner, without negligence or abuse, does not, by reason of…noise…vibration, and other objectionable features which are necessarily incident thereto and which are common to the public at large, constitute an actionable nuisance, since the doing of that which has been lawfully authorized cannot constitute a nuisance.” City of Hamilton v. Hausenbein (OH), 139 N.E.2d 459

37. Case Law is also Clear as to Nuisance Claims from use of Rail Systems for Public Purpose… Public railroad functions are protected from nuisance claims “so long as they are exercised without negligence and in the customary and appropriate instrumentalities….” Robertson v. New Orleans & G.N.R. Co (MS), 129 So. 1180

38. “Noise…[is a] necessary incident[ ] of the construction and operation of [an elevated railway], and, if every property owner could recover in all such cases, the making of public improvements would become practically impossible.” Griveau v. S. Chicago City Railway Co. (IL), 130 Ill.App. 519 (1st Dist.)

39. “The annoyance and inconvenience occasioned [by noise from train movement is] to be viewed from the same legal standpoint as are the annoyance and inconvenience necessarily suffered by those who live along a turnpike or other highway.” “The perfectly proper use of [rail] vehicles constitutes an annoyance, from which people suffer and sometimes seriously, but this inconvenience is an injury for which there is no redress.” Dean v. Southern Railway Co. (MS), 73 So. 55

40. However, it is unclear how this case law would influence rail expansion into well-established neighborhoods.

41. Takings Claims Los Angeles County Metropolitan Transportation Authority v. Continental Development Corporation

42. Are Takings Claims Likely to Stem from Rail Expansion? Just compensation must be provided No more and no less than making the landowner whole for the loss/damage sustained Inverse Condemnation/Nuisance When the consequences of the project are “not far removed” from a direct physical intrusion or amount to a nuisance Severance Damages When diminution in the FMV of the remainder of the property is caused by the project

43. Los Angeles County Metropolitan Transportation Authority v. Continental Development Corporation (1) The Facts: Continental Development Corporation (CDC) owned a 4.43 acre (192,970.8 sq. ft.) parcel of land The Los Angles County Transportation Commission (LACTC) brought an eminent domain proceeding to acquire three interests in the land for elevated light rail construction Air rights easement (approx. 5 feet on avg.) Construction easement (approx. 5 feet on avg.) Fee (373 sq. ft. area)

44. Los Angeles County Metropolitan Transportation Authority v. Continental Development Corporation (2) Issue: Whether CDC could recover severance damage to its property based on: Building redesign Noise mitigation Visual Impact

45. Los Angeles County Metropolitan Transportation Authority v. Continental Development Corporation (3) Severance Damages – the diminution in the FMV of the remainder land caused by the project Two Kinds of Benefits: General Benefits – the increase in the FMV of the land & community from advantages that come from the improvement Special Benefits – the increase in the FMV of the land from the mere construction of the improvement – are peculiar to the land in question

46. Los Angeles County Metropolitan Transportation Authority v. Continental Development Corporation (4) Eminent domain requires a set-off of general and special damages against both severance damages and compensation for the taking Conclusion: A land owner shall receive compensation for the damage he suffers based upon the land taken and the damage or value of the project’s construction. Just compensation can be off-set by value added to remaining land

47. Railway expansion will likely require relocation of public utilities Within public rights-of-way Outside public rights-of-way

48. Relocation of Public Utilities Claims Northwest Natural Gas Co. v. City of Portland

49. Northwest Natural Gas Co. v. City of Portland (1) The Facts: Tri-Met provides and operates a light rail transit (LRT) system in the Tri-County Portland metropolitan area in cooperation with the City of Portland Tri-Met was constructing rail lines to provide public transit between neighboring Gresham and downtown Portland Each of the utilities doing business within the City previously received authority to operate and maintain their facilities within the public rights-of-way

50. Northwest Natural Gas Co. v. City of Portland (2) The Facts (continued): The City of Portland mandated the relocation of all public facilities within the public rights-of-way to enable construction of the LRT. Four investor-owed public utilities (gas, power, & phone) sought a declaration that the City could not require uncompensated relocation of their facilities to accommodate Tri-Met’s construction of the LRT.

51. Northwest Natural Gas Co. v. City of Portland (3) Issue: Whether the City had authority to require uncompensated relocation of public utilities to accommodate construction of the LRT system.

52. Northwest Natural Gas Co. v. City of Portland (4) Trial Court: City may require utilities to relocate their facilities within public rights-of- way without compensation Court of Appeals: Reversed in part Oregon Supreme Court: Reversed.

53. Northwest Natural Gas Co. v. City of Portland (5) Holding: “Municipal ownership and operation of a mass transit system is a traditional governmental function.” Municipalities need only act within applicable statutes and within the authority of their charters and ordinances. Municipalities have the right to act “in the interest of public health and general welfare.” “The regulation of [a] city[’s] streets for purposes of transportation is a proper exercise of [its] governmental authority.”

54. Northwest Natural Gas Co. v. City of Portland (6) Conclusion: Utility companies may not recover the costs of relocation of their facilities against the City or the transportation authority for the construction of the light rail transit system within the public rights-of-way.

55. What about relocation of public utilities not located within public rights-of-way? But…

56. Solutions: Negotiate Relocation/Alteration Purchase Lease Eminent Domain/Condemnation

57. Urban Growth Limits are Integral to Increased Transit Ridership Growth Limits are Good for Transit Optimize use of transit facilities by reining in development Encourage transit oriented developments Ensure financial viability of transit systems Enable better planning and transit expenditures

58. Suburban Growth Rates Have Grown Steadily in the U.S. Since World War II

59. Such Growth Requires an Increase in Housing Stock to Support the Increased Population People want the “American Dream:” Detached single-family residential homes Requires increased land area Proliferates urban sprawl Requires inefficient expansion of roadways and public commuter systems

60. Current Metropolitan Growth Rates A Chicago Area Case Study (Continued)

61. Like many other large U.S. metropolitan areas, the Chicago area has experienced high land consumption and population growth rates

62. Chicago Area Geography The region is composed of six counties - McHenry, Lake, Kane, DuPage, Cook, and Will.

63. Projected Growth: The Chicago area includes the City of Chicago and 272 surrounding suburban municipalities The Chicago area will grow by 1.6 million people over the next three decades The Chicago area will experience an increase of one million additional cars by the year 2030

64. Land Development (1972/2030)

65. Evaluating the Capability of Current Planning Measures to Regulate Urban Growth

66. Current Planning Efforts are Insufficient Many municipal and county zoning ordinances proliferate urban sprawl by establishing: Prohibitions on multi-unit dwellings Excessive minimum lot sizes Excessive maximum density regulations Prohibitions on mixed-use development

67. The Net Effect: In the Chicago area alone, continued developmental patterns will result in the development of 500 square miles of open space by 2030 Driving times will increase by 14 minutes per person by 2030 Increased traffic congestion Deterioration of air quality

68. Types of Growth Management Urban Growth Boundary (UGB) Intergovernmental Growth Management (IGM)

69. The Urban Growth Boundary(UGB): A Potential Solution

70. What Is a UGB? The UGB is a line drawn on planning and zoning maps outside of current municipal boundaries to show where and how a municipality expects to grow The UGB designates undeveloped urbanizable land that will accommodate future municipal growth Urban development is prohibited on all land outside the UGB, thus restricting urban growth

71. How Is the UGB Established? A Collaborative Effort Between: Each municipality that is enveloped by the UGB The county or counties within which the municipality is located and/or contiguous Special service districts Local area citizens

72. How Much Land is Needed in the UGB? The Formula: AVLN – AVLA = Urbanizable land needed in the UGB AVLN: Acres of vacant land needed to accommodate expected growth within the community AVLA: Acres of vacant land already available within the current municipal boundary

73. How is the Location of the UGB Established? Three General Factors of Consideration: Efficient Use of Land Protection of Open Space & Agricultural Land Cost-effectiveness, as by ensuring the orderly and economic provision of pubic services.

74. Can the Boundary of the UGB be Enlarged? Yes. However, enlargement of the boundary is contingent upon compliance with statewide planning goals. Enlargement is permitted: When founded upon necessity After examining the potential expansion by considering the three factors utilized in establishing the initial boundaries of the UGB After determining that the proposed area of expansion is indeed the best place to expand

75. Successful UGBs Accomplish the Following Goals: Contain Urban Sprawl Encourage Mixed-Use Zoning Encourage In-fill Development and Redevelopment Control Costs of Public Services and Facilities Create Certainty Land Consumption Land Use Public Service and Facility Expansion

76. How is the UGB Good for Transit? UGBs encourage mixed use development, creating “town centers” in which people live, shop, and work near public transit lines. Such development reduces the need and dependence upon automotive transportation.

77. The End Product: Mass transit rail systems can be extended and improved with certainty

78. But… Are UGBs Unconstitutional Takings? UGBs have not been challenged on constitutional grounds as takings. However, UGB proponents remain concerned, as the current Supreme Court is increasingly protective of private property rights.

79. Physical Takings v. Regulatory Takings Physical takings are those primarily contemplated by the 5 th Amendment The classic case: the government physically appropriates one’s land for public use Always require compensation The Supreme Court has also recognized so-called regulatory takings. The classic case: “government actions do not encroach upon or occupy [one’s] property yet still affect and limit its use to such an extent that a taking occurs.” Require further analysis

80. Total Takings v. Partial Takings Total Taking “A regulation which denies all economically beneficial or productive use of land” will require compensation under the Takings Clause. Partial Taking (Penn Central) The following factors must be balanced Regulation’s economic effect on the landowner Regulation’s interference with reasonable investment-backed expectations Character of the government action (is there a “substantial public purpose?”)

81. Are UGBs a Total Taking? In Palazzolo v. Rhode Island, a plaintiff was unable to convince the Supreme Court that he suffered a regulatory taking when he was limited to building one residence on his eighteen acre lot. The court held that the land was not “economically idle” and therefore not a “total taking.” Landowners in Oregon that live outside the UGB are allowed to do even more than the Palazzolo plaintiff, such as building several houses on ten-acre lots, using land for agricultural purposes, and even converting land to urban uses if rural uses are impracticable. Thus, Oregon’s UGB law is probably not a total taking.

82. Are UGBs a partial taking? Even if a state has not enacted a UGB, a proposed UGB will interfere with investment-backed expectation only if the landowner reasonably relied on its absence. Municipalities may avoid this by including land already zoned for intense development within UGBs. In Agins v. Tiburon, the Supreme Court held that limiting urban sprawl is a legitimate state interest justifying restrictions upon development of rural and suburban land. Thus, UGBs are probably not a partial taking, because their purpose is to limit sprawl.

83. Intergovernmental Growth Management (IGM): A potential solution AND alternative to the UGB

84. Purpose of IGM: A mechanism for municipalities and counties to work together Establishes regional councils composed of representatives from each county and municipality within the region Encourages development and implementation of intergovernmental plans

85. Importantly, the IGM is More Carrot than Stick. This is not a minor distinction!

86. Conclusion: UGB and IGM both effective However, the feasibility of a growth control is dependent upon variations among regions and states: Need Politics

87. Which is Best for the Chicago Area? 1 million additional cars by 2030 1.6 million additional people High land consumption trends And mixed feelings about growth controls and public transit

88. GAS TAX A GAS TAX WOULD Incentivize public transit ridership Fund extensions to current transit lines or installation of new systems Encourage fuel efficiency

89. POINT COUNTERPOINT “Western Europe stands as a testament to the effects of higher transportation costs on land use….It is no coincidence that European nations that exact high fuel taxes from motorists also have…limited sprawl and heavily patronized transit services.” We would need a considerable tax to make Americans “feel it” in their pocketbooks: “Eleven percent of the 1996 average disposable income divided by the amount of gasoline consumed that year gives the price per gallon ($5.72) that is necessary for gasoline to consume the same percent of personal disposable income as was consumed by gasoline in 1981.”

90. THE PUBLIC SUPPORTS PUBLIC TRANSIT Four in five (81 percent) Americans believe that increased investment in public transportation strengthens the economy, creates jobs, reduces traffic congestion and air pollution, and saves energy. The survey found that almost three-quarters (72 percent) support the use of public funds for the expansion and improvement of public transportation. “Most Americans, even those living in rural areas of the country, agree that their community needs more public transportation options.” “Recent studies suggest that people will readily walk ¼ mile in order to take advantage of public transportation. People will walk even further if the transit includes rail….”

91. Conclusions: Rail expansion, growth management, & gasoline taxes, when implemented in conjunction with each other, are effective means to reduce U.S. energy consumption. However, this three-pronged initiative is a time intensive process and therefore does not provide an immediate solution. Furthermore, political constraints may not enable one or all prongs of this initiative to be implemented

92. Feasibility of implementing the initiative Pros Rail-based transit enjoys wide public support Partially self-financing Mitigate sprawl, foster redevelopment (infill reinvestment), and increase property values Reduce fossil fuel consumption Cons There may be opposition from the terminally addicted Associated costs likely to exceed revenues from gas Increased property values Economic impacts