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Bar Journal - December 1, 2001

Sustainable Development and Transportaion Choices

By:

Why Article 6-a of the New Hampshire Constitution Should be Repealed

This article addresses the thesis that undesirable growth patterns have been established by social policy that no longer furthers a useful purpose. That policy is found in the New Hampshire Constitution at Part 2, Article 6-a. Adopted in 1938, Part 2, article 6-a of the New Hampshire Constitution states as follows:

[Use of certain revenues restricted to highways] All revenue in excess of the necessary cost of collection and administration accruing to the state from registration fees, operator licenses, gasoline road tolls or any other special charge or tax with respect to the operation of motor vehicles or the sale or consumption of motor vehicle fuels shall be appropriated and used exclusively for the construction, reconstruction and maintenance of public highways within this state, including the supervision of traffic thereon and payment of the interest and principal obligations incurred for said purposes; and no part of such revenues shall, by transfer of funds or otherwise, be diverted to any other purpose whatsoever. (Emphasis added)

This amendment establishes a funding source for the construction and maintenance of our state road system.

The purpose of this article is to demonstrate that Article 6-a and its policy, implemented in the early part of last century, created several factors that currently contribute towards what is commonly called sprawl. This policy, though effective at that time, now negatively influences growth, land management practices and development decisions.

BACKGROUND

The State of New Hampshire has grappled with the impacts of growth over the last several decades and more recently has focused on identifying indicators that contributed to this pattern. In 1999, Governor Shaheen by executive order 99-2, proclaimed the uniqueness of New Hampshire’s historical, cultural and natural assets. The order required the Council on Resources and Development (CORD) and its ten executive agencies to examine state practices that promote traditional communities and landscapes, and to offer recommendations for programmatic improvements to programs, rules or regulations. The goal was to give the public assurance that state government was doing all it possibly could to guarantee these valuable resources for future generations.1 

In 2000, the New Hampshire Office of State Planning issued a report in conjunction with Growth Management Advisory Committee entitled "Managing Growth in New Hampshire: Changes and Challenges".2  The report made it clear that the issues of growth must be addressed in a multidisciplinary, diverse and comprehensive manner. Several indicators were identified in the state’s report on growth. This article concentrates on the state’s transportation infrastructure as one of those variables being a significant driver of sprawl, and recommends reexamination of outdated policies that currently contribute to our unsustainable growth patterns.

There was a time when an individual had choice in selecting their mode of travel; when bus and rail transportation were viable options as well as the automobile. Community centers were more densely populated, business centers more centrally located, and walking to a destination was more convenient. Those more familiar with only the automotive option have seen its popularity explode in the last century and witnessed its dominance in our society and culture.

In decades past, our transportation infrastructure was much different. Before the era of the automobile, New Hampshire had an extensive and elaborate railroad system. Communities had defined walkways and early transit options, like streetcars, were in place. As technology and mass production advanced, the automobile and the growing road network began to displace other modes of travel. The popularity of the automobile and powerful influence of the automotive industry brought a new paradigm to transportation infrastructure, both regionally and nationally, that has not always been favorable to communities and people.

HIGHWAYS AND SPRAWL

The 1938 constitutional amendment restricts state highway funds in such a way as to preclude their use in funding other forms of transportation. So why is this significant to the question of sprawl and undesirable growth? Highway expansion and the dominance of the automobile have given us mobility and have significantly altered patterns of growth, encouraged low-density development and the suburbanization of our open space. By increasing mobility through highways, cities have become vast, suburbs more sprawling, and business and industry more dispersed. Non-farm residents and their homes have sprung up without strong community ties and commuting times have lengthened.

Mobility has also contributed to destructive patterns such as accelerated decay of our older cities, a significant increase in pollution in the environment, nightmarish traffic congestion and the undermining of our public transportation systems. This in turn contributes to a loss of rural character and the natural resources that New Hampshire depends on for tourism, to attract businesses and professionals, and foster economic development. These patterns have developed over the past several decades and need to be addressed and reversed if the "New Hampshire Advantage" is to be maintained.

As our road systems grew, other modes of transportation declined, burdened by the regulatory process and unable to compete with the automobile. Under President Dwight D. Eisenhower, the idea of the Interstate Highway System flourished and was provided funding to accelerate construction programs. The Federal Aid Highway Act and the Highway Revenue Act of 1956 further expanded the subsidies to highway building for defense and economic development. As a consequence, there has been a marked increase in populations moving outward from service areas or core communities to less densely settled areas since the 1960s. The "American Dream" to own one’s home is being realized in less urban areas because of easy access, through highways and the market place. The sale of land for potential development whether for homebuyers or for business locations, has proved to be an inviolate right argued for economic or political gain. "Combine these with a strong desire for privacy and a national policy of inexpensive fuel and an explosion of technology that enables instantaneous communications over distance, and we have a strong set of centrifugal forces sending development outward from the centers to the edges. "

Recognizing that transportation has a major role contributing to poor growth patterns, the Report to Governor Shaheen on Sprawl in December 1999, identified five areas where the state could make improvements. Of those, the last was to look at "new approaches to transportation." The report clearly states the rationale for this recommendation: "Finally, agencies see new approaches to transportation as being key to our future. The transportation system of the past several decades has focused on making travel by automobile fast, cheap, convenient, and almost exclusive. This creates an environment conducive to sprawl. Now we need to develop a transportation system that works, but includes options for how we choose to get around."2  (Emphasis added)

Mobility is an important concept for our society today; especially when we consider the gridlock that automobile congestion creates. Mobility should now represent choice in how we travel. There are classes of individuals in our society that simply can’t use an automobile due to age, physical disability or economic circumstances. In fact, our aging population, which represents a growing portion of the population, will increasingly demand choice in their mode of transportation.

Choice is critical to those all who require transportation and it is becoming more important every day to those who travel by automobile but seek alternatives that offer convenience, timesavings, and less stress. We can’t reverse the subsidies of the past, but the state can be more responsive to its citizens and communities if it restructures the financing that drives transportation decisions. In doing so, New Hampshire communities may have better tools to determine their growth destinies and protect the resources they consider of value.

THE COSTS OF OUR HIGHWAYS AND THEIR IMPACT ON OUR SOCIETY

Article 6-a was intended to protect highway funds and devote these moneys to highway building and maintenance. But economic and political analyses over the last several decades have shown there is far more expense involved with this system. Experts have examined the costs for maintaining our interstate highways and point to the fact that highway subsidies are not covering all costs attributable to driving. Additional costs now include items such as:

  • Treating and cleaning up the polluted air from automobiles,
  • The cost of U.S. foreign policy to insure that oil is available to American producers,
  • Parking subsidies for driving commuters,
  • Higher health-care costs associated with air pollution,
  • Economic damages associated with wasted fuel and time lost in traffic congestion,
  • Losses of life and human capacity in traffic accidents,
  • Litigation and court costs for handling personal injury lawsuits, and
  • Automobile insurance.

These hidden costs can add significantly to the overall tax burden that Americans pay. Many drivers believe that the motor vehicle fees and gasoline charges equal the cost of building and maintaining the roads on which they drive. But this is not so. With these costs paid also through property, sales, and income taxes and higher consumer prices, there is an effect on those who do not drive. Our current transportation programs have unfairly shifted the costs from those who benefit to those who do not. We seriously underestimate the price society has paid at the hands of the automobile users. The situation has created an incentive to drive more since the costs are not directly borne by the automobile users. In turn, this exacerbates the problems that already exist from overuse of our vehicles.

A particularly glaring imbalance exists when various classes of vehicles and their individual costs are assessed. Regarding the physical infrastructure alone, heavy trucks cause extensive damage to our highways and yet still contribute far less through their taxes to the cost of maintenance. Studies have shown that trucks bear only 14% of maintenance costs in cities and 29% of the costs on intercity roads. The disproportional nature of this assessment becomes more acute when you consider that a 13-ton truck, which by today’s standards is considered modest, can cause roughly 1000 times the structural damage to a road than a car.

It is important to consider the impacts of adding public transportation to the overall transportation system. Reduction in traffic congestion is one of the most significant benefits. Buses equipped with more fuel-efficient options and enabled by High Occupancy Vehicle (HOV) lanes can carry far more passengers and move more quickly in a congested system. The efficiencies of scale are increased further if the HOV lanes are open and available, by reducing the overall number of automobiles. Vehicles idling in a traffic jam emit more air pollution than those actually traveling. If the transit option includes light rail or commuter service, passengers are carried on a system free of the congestion found on our highways and with a speed and dependability that enables individuals to make and keep scheduled commitments. Other benefits that cannot be quantified include stress reduction, increased productivity and time for the many activities in a normal day, which is increasingly lost when we are trapped in traffic or running behind because of congestion.

Many who drive would also use mass transit if the option were available. But New Hampshire’s transit structure cannot meet this demand and in many locations throughout the state there is no option other than the automobile. Besides disenfranchising a sizable population of citizens that may not be capable of driving or are unable to own a car, those who still drive automobiles in order to access various transit options are paying their taxes for a system they choose not to use exclusively.

THE EARLY YEARS OF HIGHWAY FINANCING

Data shows that the federal government began investing heavily in highways, in the beginning of the twentieth century, while other transportation systems such as trolleys, streetcars and railroads were privately owned, operated and paid taxes. Federal subsidies for highway building continued unabated and unfettered despite caution over the ongoing social engineering that was taking place through governmental intervention. As highway development increased, the modes of transportation began competing; trucking versus rail freight and passenger car versus streetcar. Motor vehicles using subsidized highways had an enormous advantage over the traditional and more highly regulated modes of transportation, which owned, operated and maintained their support infrastructure. Advances in automotive technology leapt forward with this financial encouragement from the government and arguably, other transportation technologies were stifled for the same reason. Governmental policies of subsidies and regulation created competitive imbalances in the open marketplace.

Stephen Goddard, in his book Getting There, chronicles the layers of events, social, political and economic, that shaped our current transportation system. He concludes "…a draining dispirited drama played out over the next half century, in which the government sapped away the strength of one industry and part of another, by suffocating their operations. Full-throated competition between road and rail might well have led to new abuses, which government could have used its powers to correct. But no one can know what might have happened, because competition was never given a chance." Against the backdrop of national development of the highway transportation system, New Hampshire began to take its own steps.

One of the distinct policy directives that helped implement improved road systems was taxation of motor vehicle fuel, in order to build and maintain our roads. In the 1920’s, like the states surrounding it, New Hampshire adopted legislation that allowed for the collection of tolls relating to highway uses. In the following decade, the number of automobiles increased exponentially, the United States entered into the Great Depression, and road building became an important part of the economy because of the jobs it supplied. The money available in highway funds became an attractive target for other purposes in the depressed economy. Concern about diversion of these funds grew until definitive steps were taken to protect the money. Over 35 states adopted language that constitutionally codified this form of taxation to subsidize the development and maintenance of highways. These changes led the way to greatly improved road systems and ultimately supported development of the interstate highway system.

New Hampshire addressed the issue of protecting its highway funds in 1938 when the Constitutional Convention (New Hampshire Constitution, Part 2, Article 100) met to reconsider the committee on Legislative Department’s report of inexpedient to legislate on a proposal restricting the use of motor vehicle and motor fuel revenues. Minutes of the Journal of Constitutional Convention indicate that the delegates brought forth the resolution, fearing that motor vehicle fees and gasoline taxes that were proscribed by statute would be diverted away from highway uses. The governor and council had used highway funds to purchase additional lands for the Daniel Webster homestead, expecting to reimburse the fund from the sale of timber cut on the land purchased.9 

Delegates cited the misuses in other states and the reimbursements that surrounding states had been forced to make under the Hayden-Cartwright Act of 1934. The Act called the use of motor vehicle taxes for purposes other than building or maintaining highways unfair and unjust and threatened the loss of federal road aid to any state that continued such practices.10  Although federal law as well as some states prohibited diversion to non-highway uses, New Hampshire delegates suggested that the law could be changed any time in the future. In further support for a constitutional amendment, they raised concern that the use of the fund by the governor and council would set a precedent that would occur again and again if no safeguards were in place.11 

The May 25th minutes of the Constitutional Convention demonstrate that there were strong feelings on both sides, with delegates defending the report from the committee while amendment proponents pressed for constitutional change. Delegate Upton of Concord spoke eloquently in support of the committee’s report.

The majority…of this committee were of the opinion that there was no occasion for such an amendment. The highway toll or gasoline tax produces approximately $2,500,000 annually. The fees from registrations and licenses amount to approximately $2,000,000 more. This resolution applies, therefore, to state revenues aggregating at the present time approximately $4,500,000. Every cent of that is being used for the improvement and maintenance of our highways. In addition there is raised from other sources, principally through towns and the Federal Government through subsidies to maintain and improve our highways, about $4,000,000. We are spending each year for the maintenance and improvement of our highways approximately twice the amount of taxes received from automobiles. I think that there was no member of the committee who did not favor the principle embodied in the resolution. But the committee did not see any occasion for writing this principle into fundamental law…The committee further felt that there was no reason to apprehend any diversion of this money from the purposes for which they are now used, as there is nearly twice as much spent on highways as is received from automobile taxes and highway tolls. We did not feel it was desirable to write into the constitution special rules for the use of funds in advance of their collection. We believe this matter might be safely left to future legislatures.12 

This logic however, did not prevail. Proponents prevailed on the concern for precedent, diversion and economics, claiming those who said that the revenues would be more than needed would never see this come to pass in their lives. Citing the loss of jobs in Massachusetts as a result of diversion there and the costs of owning and operating a vehicle, advocates for the amendment urged passage. Added the chief proponent, Professor Holden from Hanover, "We need also and wish to attract people to buy homes, to spend their vacations here and to come here for winter sports. The recreational business which is one of the largest industries in New Hampshire requires good highways."13  The proposal passed 242 ½ to 180 on a roll call vote.

INTERPRETATIONS OF ARTICLE 6-A SINCE ITS ADOPTION

The New Hampshire Supreme Court and the New Hampshire Attorney General’s Office have narrowly construed legal questions about the intent and purpose of Article 6-a. The New Hampshire Supreme Court has ruled that by restricting applications of the funds to highway purposes, the state was also ensuring that those who pay the assessments would also be the ones receiving the benefit.14  In defining what constitutes a highway purpose, the Court has considered that this may encompass expenditures for purposes other than for the physical construction and maintenance of the highways themselves. The Court upheld highway fund expenditures to reimburse a utility company for costs in relocating when the highway was moved.15  The Court held that the state "never considered a highway purpose to be limited solely to the transportation of people and property on the highways."16  The Court also upheld the use of highway funding for the operating costs for the division of state police under the Department of Safety as long as the money expended was reasonably related to the amount of work devoted to enforcement of traffic laws on the highways.17 

In more recent decisions, the Supreme Court has addressed other proposed uses of these highway dollars and has not expanded its interpretation broadly to add other uses. The Court struck down as unconstitutional, proposed legislation to use highway funding to aid elderly and handicapped transportation. The Court said that this did not benefit the highway user in its capacity as a highway user, and only assisted the elderly and handicapped.18  The legislation had proposed the use of increased fees for inspection stickers and certificates of title but the Court made clear that other permissible uses were tied to the benefit of the highway user and did not find the same to be true for assistance in transporting handicapped and elderly.19  This clearly sends the message that Article 6-a will not allow the implementation of necessary and beneficial social programs regardless of clear public support and need.

The NH Department of Transportation in 1990 asked the Attorney General for an opinion on the use of highway funds for the purchase of land to mitigate for the environmental consequences of a highway project. The Attorney General found that the use of highway funds for wetlands mitigation was a legitimate use and a proper highway purpose. "When mitigation is a requirement for funding or permit approval, this form of compensation becomes a necessary incident of the Department’s mission to provide a safe and convenient transportation system. Without wetlands mitigation plans, the Department will be unable to obtain dredge and fill permits from the U.S. Army Corps of Engineers or federal funding for improvements of over burdened and inefficient roads."20 

The opinion relied on a Pennsylvania court case where the Pennsylvania Department of Transportation sought to condemn property to replace wetlands adversely impacted by highway development. The court found that there was a nexus between the Pennsylvania Department of Transportation’s condemnation of the property and the road project to bring the action under the meaning of "all transportation purposes" as required under Pennsylvania state law.21  This interpretation suggests physical proximity is an important component in the definition of highway purpose and concludes, "…as the distance between the right-of-way lines and the mitigation lands increases, the risk a court would invalidate the taking also increases."22 

Again in 1992, the New Hampshire Department of Transportation requested an opinion of the Attorney General whether highway funds could be used for public bus or rail transportation programs. The Attorney General’s office, relying on the 1977 Opinion of the Justices on the elderly and handicapped transportation legislation, expressed doubt that the alternative transportation programs of rail or bus would fit within the definition of a highway purpose. The opinion states that although,

an argument can be made that public transit expenditures benefit highway users by relieving traffic congestion and minimizing the physical deterioration of highways, these beneficial effects are both indirect and difficult to quantify in any meaningful way. Such expenditures would primarily benefit the users of public transportation rather than the highway users who paid the revenue into the ‘highway fund’.23 

Arguably, the conclusion that the benefit would accrue to public transportation users is not accurate. Public transportation can directly benefit highway users through the easing of congestion and reducing automotive emissions. Less congestion makes automobile travel less stressful, more enjoyable and more efficient. Despite the fact that the point can be argued differently, the likelihood that a court would allow such an interpretation is negligible. The direction that the courts have taken in their interpretations of Article 6-a is narrowly confined to highway purpose and the benefit of the highway user.

Undoubtedly, there are some avenues for establishing taxation schemes that fall outside of the restrictions of the Constitution. In the case of American Automobile Association v. the State of New Hampshire, the Supreme Court upheld the lower court’s decision that motor vehicle certificates of title fees were incurred as a result of ownership and not operation, thereby avoiding the restrictions of the constitution imposed on the use of revenue derived from motor vehicle operation.24  More recent revenue schemes include the conservation number license plates under RSA 261:97-a with dedication of the additional revenues raised to the acquisition of open space and preservation of historic structures throughout the state. These fees are voluntary and are assessed in addition to the regular motor vehicle registration fees and other number plate fees that are required.

The Court in the 1977 Opinion of Justices was also explicit about any revenues raised by the means set forth in Article 6-a, which affects further legislative efforts to promote praiseworthy endeavors. "In this respect article 6-a operates as a restriction on otherwise permissible taxing purposes, which would include the allocation of revenue in such a manner as the legislature considers necessary in order to promote the general public’s welfare."25  Clearly, legislative attempts around the restrictive language of the constitutional amendment in order to balance the uses of highway funding to meet important social goals will be met with the same interpretation.

The amendment was adopted at a time when the articulated goals were the development of our road infrastructure and the needs of the motoring public. Much has changed since that time and we now see the impacts of heavy dependence on our highways: increased maintenance due to heavier vehicles and their loads, growing congestion and failure of the system to keep up with demands of the public, and significant air pollution associated with the operation of these vehicles. All these factors contribute to a decrease in the quality of life, the stress of achieving mobility and the ability of the public to choose where and how they would want their tax dollars to be spent.

CONCLUSION

Part 2, Article 6-a of the New Hampshire Constitution has shaped the transportation system of the State of New Hampshire to what it is today. It has elevated the automobile to an unprecedented position in our society and kept it there despite changing social policies and acknowledged problems. If the restrictions of this amendment are allowed to remain in our constitution, the Department of Transportation can talk about intermodal opportunities and alternative transportation but will only be able to realistically implement such options if our Legislature appropriates general funds for this purpose. Given the current fiscal constraints that the state is operating under and the still unresolved school funding debate, this is indeed a remote possibility.

The repeal of Article 6-a would permit the legislature to direct the revenues collected from taxes on the consumption of gasoline and other revenues derived from the operation of motor vehicles more broadly. Alternative transportation could be funded with an emphasis on buses, rural transportation and rail infrastructure as well as pedestrian and bicycle options. Cities and towns across New Hampshire could have more say in the development of their own transportation systems and addressing the needs of their citizens. But most important, the emphasis on highway building could be eliminated and a focus on a balanced transportation system brought to the forefront.

At present, the system by which costs are levied and transportation decisions are made is entrenched and too difficult to alter, making progressive policy makers and legislatures incapable or reluctant to develop socially responsible programs that enhance transportation options for those with need or a desire to have choice in their traveling options. Article 6-a is a sacred relic and is staunchly defended by groups and associations who perceive its demise as undercutting their economic power and viability. However, as a social policy, the restrictions of Article 6-a have served their purpose and now have begun to wreck havoc on the needs of society because of the tight adherence to highway building. Overall, the language of Article 6-a is very restrictive and any subsequent legal review would closely construe the intent of the constitutional amendment as it was originally written. This is an outdated policy that needs to be undone if we truly desire to diversify our transportation options and provide choice. Only then, will the state have a real opportunity to find a balance between its economic growth and the preservation of its natural beauty and rural character.

There are opportunities for the state legislature to balance the concerns of many while reallocating these resources for that purpose. Economic opportunities will not be lost but rather redistributed by removing this constitutional amendment. Repeal is a necessity if New Hampshire truly wants to stem the tide against sprawl and gain control over its future growth and economic opportunities. Unless this state is willing to make a substantial change to how our transportation system is funded and implemented, the "New Hampshire Advantage" will falter and be lost.

ENDNOTES

1. Executive Order 99-2, Signed February 4, 1999 by Jeanne Shaheen, Governor, State of New Hampshire.
2. Office of State Planning, "Managing Growth in New Hampshire: Changes and Challenges", 2000.
3. Richert, Evan, Edited opening remarks, Paradox of Sprawl, Conference Proceedings, Eco/Eco Civil Forum, College of the Atlantic, October 30-31, 1997.
4. Report to Governor Shaheen on Sprawl, December 1999, p. 19.
5. Goddard, Stephen B., "Getting There, The Epic Struggle Between Road and Rail in the American Century", p. 250.
6. Ibid at 251.
7. Ibid at 250.
8. Ibid at 251.
9. Weyrich, Paul, "Conservatives and Mass Transit: Is It Time for a New Look", The American Public Transit Association, 1992.
10. Goddard, p. 247.
11. Journal of N.H. Const. Conv. 139, May 25, 1938.
12. Goddard, 156 citing Rose, "Interstate Highway Politics", p. 4
13. Journal of N.H. Const. Conv. 139.
14. Ibid at 142.
15. Ibid at 144-145.
16. Opinion of Justices, 117 NH 655, 657 (1977).
17. Opinion of the Justices, 101 NH 527, 528 (1957).
18. Ibid at 530.
19. Opinion of the Justices, 117 NH 300, 304 (1977).
20. Opinion of the Justices, 117 NH 655, 658 (1977).
21. Ibid.
22. Office of the Attorney General, Opinion No. 89-33, January 3, 1990.
23. Ibid citing Appeal of Gaster, 556 A. 2d 473 (Pa. Commw. Ct. 1989).
24. Ibid.
25. Office of the Attorney General, Opinion No. 92-10, October 28, 1992.
26. American Automotive Association v. State of New Hampshire, 136 N.H. 579 (1992).
27. Ibid at 657.

The Author

Attorney Nancy L. Girard, Vice President/NH, Director/NH Advocacy Center, Conservation Law Foundation, Concord, New Hampshire.

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