Rights of Way: Shared Streets and the Evolving Municipal Traffic Code

 

In the early 1970s, Mayor John V. Lindsay and his administration pursued an ill-fated proposal to turn Madison Avenue between 44th and 57th Streets into a pedestrian mall with limited access to buses, emergency vehicles and delivery trucks. The New York Times deemed “the concept of a shopping area freed from the din and pollution of automobiles and adapted entirely to the pleasure of walking, sitting, browsing, and shopping… almost irresistible.”[1] Jaquelin T. Robertson, director of the Office of Midtown Planning and Development, touted the mall as a “step in a much larger proposal to recapture space in central Manhattan for outdoor life, to lessen air pollution and to unsnarl the city’s epic traffic jams.”[2] Even amid an angry chorus of the taxi commission, the Commerce and Industry Association, and the Traffic Action Committee, the Transportation Administrator, Constantine Sidamon-Eristoff, confidently cited the reductions in noise and carbon monoxide as benefits and promised manageable traffic impacts.[3] Mayor Lindsay declared that “all over the world, great cities are beginning to redesign their core areas around the man on foot [and so have] revitalized business and enhanced the quality of life for downtown areas.”[4] Before being derailed by a 12-10 vote of the Board of Estimate, the Mayor even proposed a compromise 90-day trial for the mall — to no avail.[5]

Where Lindsay’s Madison Avenue Mall failed, New York City’s 2009 Times Square Pedestrian Plaza succeeded. In 1971, when Lindsay proposed the Madison Avenue Mall, cities were dying, and the resonant cry of shop owners that the mall might prove “ruinous to their business” won the day.[6] Today, cities are ascendant, prompting urbanists and politicians alike to find in the revived ethic of pedestrianism a new imperative, not founded on a plea in the face of decline and disinvestment, but on a recognition that our future will and must be an urban one. Now, following in the footsteps of New York City and its Transportation Commissioner Janette Sadik-Khan, cities across the nation are again asserting right of way for the man on foot.

 

The divergent histories of the Madison Avenue Mall and the Times Square Plaza reflect the opposite trajectories of the city in their time, but also point to an evolving conception of what streets are for and how we want to use them. Since the 1920s and ‘30s, when new and unprecedented restrictions were imposed upon pedestrians’ rights to the roadway, the prevailing character of the street has been determined by law as a space for traffic rather than a public right of way for people. As streets became more dangerous to pedestrians, their behavior shifted accordingly and they limited their domain to the sidewalk, a change that eventually transitioned from necessary safety measure to accepted societal norm. Today, as public opinion is beginning to shift and shared street use gains traction, those legal stipulations no longer align with our emerging objectives.

At the root of this tension lies the over half-century old municipal traffic code which redefined the street as a space primarily for traffic, outlawed diagonal crossings and restricted pedestrian access and rights to the roadway. Traffic codes are the most palpable and pervasive, yet silent, arbiters of our environment. Ingrained schemas of mind and routine, they govern the basic assumptions we have of our surroundings and tangibly (yet often arbitrarily) restrict our potential uses of the street and the sidewalk.

The following is a brief digest of the municipal traffic code in the American City — a history now being challenged by efforts to create shared and pedestrian-priority spaces in the United States.

Pedestrian-priority streets, best embodied in the woonerven of the Netherlands, permit pedestrians to use the full right of way and require cars to yield to pedestrians as “guest” road users. Shared space, meanwhile, is a principle, emanating largely from Northern Europe, which dispenses of the rules, regulations, and rights of way of the modern street in favor of an ethic of shared responsibility, calculated reaction, and common privilege. Shared streets, like the Strøget (pronounced Stro-et, with a glottal stop) in Copenhagen, shun curbs for flush, paved surfaces and are often reinforced by cues and configurations that slow or divert traffic. At their core, both the shared street and pedestrian-priority street rearticulate that manner in which streets once behaved—before traffic signals and new restrictions instilled order upon what was deemed a broken and chaotic system.

While shared streets have set a precedent for good urbanism internationally, they have made limited inroads in the United States. Though the failure, both real and perceived, of the postwar downtown pedestrian mall explains part of the hesitation to ignite this suddenly new-again concept, the legal, historical and psychological dimensions of the problem warrants further investigation and scrutiny.

 

The Origins of the Municipal Traffic Code
In his 2008 opus Fighting Traffic,Peter Norton chronicles the painful transformation of the street from a shared space of common privilege and responsibility to a thoroughfare viewed and regulated as exclusive for automobiles and traffic. Beginning with the advent of the electric trolley and the bicycle in the late 1800s through the rise of “motordom” in the 1920s and 1930s, Norton exhaustively details the sense of upheaval and injustice that shook the prevailing order of the street, balking at the notion that this transformation was either natural or inevitable.[7] News clippings and records detail an unsettling escalation in pedestrian deaths (and in particular the casualties of children); transportation and engineering journals depict a profession’s evolution from traffic control to highway engineering; and the minutes of national safety conferences and meetings document how automobile, streetcar, and political interests redefined the physical and legal character of the city street. All the while, double-edged safety campaigns, shifting public opinion, and the passage of new laws and regulations further accelerated the street’s ultimate reshaping.

As skyscrapers, rapid urbanization, and the turn of the century transportation revolution strained the traditional order of the street (and saddled the right of way with unbearable congestion), the solutions prepared to streamline urban traffic systems — and, ultimately, to redefine the street — rested largely upon the work of two men: William Phelps Eno of New York City and Miller McClintock of Los Angeles.

In 1903, William Phelps Eno, a  “New York aristocrat turned gentleman traffic reformer”[8] printed 100,000 copies of his “Rules for Driving” on the condition that the city of New York adopt and distribute the guide.[9] While New York’s first traffic code was little more than a “codification of custom,”[10] Eno’s systematic vision adapted and evolved with the advent of the auto age. Though police officers (who were the main arbiters of street traffic and use at the time) were at first reluctant to enforce all of Eno’s rules and propositions, many of his earliest traffic control measures, including painted markings to guide drivers and carriages, gradually became familiar elements of the street. As time progressed, Eno’s “Ex Chao Ordo”[11] vision called for higher speed limits and traffic circles at intersections, and he invented the wide outside turn (to prevent perilous corner cutting by drivers of the time). Eno sowed the seeds of traffic control as a scientific pursuit and profession, eroding the “ancient rule…that all persons have an equal right in the highway, and that in exercising the right each shall take due care not to injure other users of the way,” a common-law precedent inherited from Britain and still referenced by American courts through the 1920s.[12]

While Eno’s innovations contributed much to our modern conventions of street use, today’s state and municipal traffic codes find their strongest roots in California. Los Angeles is best known as the city that perfected the freeway, but the city of Angels has a second, less noted distinction. LA perfected—and in certain ways invented—the modern Municipal Traffic Code, due in large part to the work of Miller McClintock.

McClintock earned his reputation through his doctoral work on traffic control at Harvard, publishing the seminal traffic engineering textbook Street Traffic Control in 1925.[13] Within a year of his graduation, he was tasked to develop a new municipal traffic code for the city of Los Angeles.

 

Though pedestrians’ rights to the street had been substantially challenged and transformed over the two decades prior, not until the adoption of the 1925 Municipal Traffic Code authored by McClintock were these changes and unprecedented restrictions on pedestrian behavior and street use codified in law. “The old common law rule that every person, whether on foot or driving, has equal rights in all parts of the roadway,” said McClintock, “must give way before the requirements of modern transportation.”[14] His code restricted pedestrian crossings to crosswalks, required foot traffic to yield to automobiles in the roadway, and banned diagonal crossings.[15] The new rules were reinforced through widespread safety campaigns (many funded by the auto industry associations), police enforcement, and even pamphlets handed out by boy scouts advising men and women against reckless jaywalking.

Shortly after its passage, McClintock’s traffic code became a model for California cities. In 1928, under the direction of the Model Municipal Traffic Ordinance Committee, chaired by Detroit Automobile Club director William Metzger, McClintock’s provisions became a national standard.[16] By 1930, the model ordinance had been adopted by 23 states.[17]

Mall City, USA
If the reshaping of urban America around automobility through housing and highways may be read as the triumph of modernism (or its distorted ideals), one of the first signs of the postmodern pendulum swinging back in the opposite direction came shortly after the passage of the Federal Aid Highway Act in 1956, as downtowns struggled more and more to compete with a new and presumably better lifestyle blooming at the periphery.[18] During this tumultuous period of change and decentralization, downtown business associations, architects, planners, and politicians aggressively adopted the pedestrianization movement taking root in Europe to revitalize urban America.

Whereas pedestrian (priority) zones are today a common fixture of most European cities, the pedestrian malls built in America from 1959 through the 1970s have historically been viewed as a failure. While many of the malls lacked the necessary programming, access, or amenities to ensure their success, the foundering of the movement in America has been overstated- conflated, unfairly, with trends already well underway that undermined the cores of cities across the country.

 

The case of the country’s first pedestrian mall, realized in 1959 in Kalamazoo, Michigan and designed by Victor Gruen, father of the American enclosed shopping mall, is instructive. Gruen’s initial proposal, transposed from an earlier scheme he famously drew up to pedestrianize the entire downtown of Fort Worth, Texas, mimicked the European practice, which was to pedestrianize a cohesive network of downtown streets and to create a ring road with peripheral parking lots for access. In its first two decades, the mall at Kalamazoo was a success, adding three additional car-free blocks. Only in the 1990s, twenty years after its last renovation had become dated, did the city decide to reopen part of the street to traffic, a decision still made only by a narrow margin.

In addition to setting a precedent for the conversion of trafficked streets to pedestrian malls, Kalamazoo also paved the way for other cities to confront some of the legal and economic obstacles to such projects. For perhaps the first time in 30 years, cities were faced with the task of revising the codification of the street writ in McClintock’s era.

In order to implement its pedestrian zone, Kalamazoo “had to identify the legal authority to restrict access to a public right of way.”[19] The California (Pedestrian) Mall Law of 1960, which followed in the footsteps Kalamazoo, for instance, restricted access to the public right of way, but did not forsake the “public interest” in the street.[20] While many pedestrian malls restricted traffic entirely, several, like the Nicollet Mall in Minneapolis, permitted public vehicles or even taxis that were subject to pedestrian priority. Pedestrian malls without transit access often provided small shuttles (like those at Disney World or many airports) for pedestrians to move through these areas to their shopping destination more easily.

 

Shared Streets, Home Zones, and Slow Zones
The legitimacy of shared and pedestrian-priority streets in the United States rests on the shoulders of cities to demonstrate how to legally redefine streets to permit a degree of ambiguity and an ethic of personal responsibility. Luckily, a wealth of international precedents, and a few early American examples, offer a blueprint.

Internationally, there are several important precedents to consider. The Netherlands granted “woonerfs” legal status by Royal Decree in 1976, stipulating that pedestrians may use the full space of any street designated as a woonerf and that vehicles must not travel at speeds exceeding walking pace. Similar legal provisions have been introduced in Denmark, Australia, and the UK. Other cities and countries, including France and Belgium, are pursuing street codes which create a vulnerable user hierarchy, creating a safety net around pedestrians and bicyclists and introducing a legal framework to disincentivize dangerous speeding by automobiles.

 

In the United States, only three cities have introduced legal codes recognizing shared streets — Cambridge, Massachusetts;[21] Seattle, Washington; and Gresham, Oregon — though none of these designs have had significant impact or widespread recognition. (Denver permits pedestrians to cross diagonally through pedestrian and transit malls, but they must yield the right of way to transit vehicles.) While few legal frameworks exist to govern shared spaces or home zones, existing familiar regulatory measures provide some basic precedent for sharing between vehicles and pedestrians. Crosswalks, Play Streets,[22] loading zones, driveways, and parking lots act as de facto shared spaces, setting the stage for a reexamination of the real ambiguities of behavior and operation in our environment.[23] Many cities are taking the first steps toward shared space by designating slow zones or home zones with basic traffic calming devices, regulations, and lower speed limits, including New York City, with its Slow Zone program, launched in the Bronx in 2011;[24] and San Francisco, through its Home Zone initiative.

Here in New York, many streets in the Financial District and Chinatown, for example, are excellent candidates for shared spaces (and already act this way de facto). However, it remains unclear whether a shared street may be governed by the simple addition of regulatory yield signs and markings, or if the state and city would be required to create a new legal classification for the shared street, as the Netherlands and the United Kingdom have instituted. While the narrow streets of old New York may be casually used like a shared space, until people are given a legal right to use the space in this way, their rights and safety remain compromised.

In the coming years, as more and more cities reexamine the legislative and regulatory framework upon which their streets act and operate, they must confront the historical assumptions etched into our environment, our codes, and our psyches. Cities will not only need to determine which new signs or stripes may impress new orders upon our street, but will need to discover a more kindred balance between the chaos by which cities sometimes thrive (and sometimes fall) and the order by which we too unconsciously abide. As a society, we must shift towards reframing the problem from regulation to shared responsibility, from a paradigm of exclusive interests, spaces, and uses, to an ethic of common sense and a measured and qualified embrace of that chaos.