Tuesday, March 25, 2008

A1A: Losing a Skirmish, But Winning a Major Battle

The Florida First District Court of Appeal released its decision on Bruce Rosenzweig et al vs. FDOT today, and the news is mostly very good. The Court wrote:
Bicycle paths shall be established unless the Department exercises its discretion not to establish bicycle and pedestrian ways where any of the conditions in section 335.065(1)(b) are demonstrated. Accordingly, we agree with appellants’ interpretation of the statute and find that the Department’s discretion is limited.

The key point in that to my ears is "demonstrated." The Department must now demonstrate that a particular project cannot include bike lanes and/or sidewalks, due to reasons of safety, excessive cost, or an absence of need. The Court also made clear that cyclists and pedestrians clearly have legal standing in such matters. Cycling and pedestrian advocates must still be watchful on projects, but now have a much stronger hand to force FDOT to prove any of those three conditions. Indeed, FDOT procedures have long required that Districts record any variation from the requirement to provide bicycle and pedestrian facilities; now the Court says they must do so as well.

Unfortunately, due to procedural matters, the plaintiffs were not able to show that the cost of providing bike lanes and sidewalks on A1A in particular were within a reasonable cost range. Discussion is on-going to determine if they will pursue the procedural matter up to the Florida Supreme Court.

The decision can be read here in its entirety.

Huge thanks are due to plaintiffs Bruce Rosenzweig, the Boca Raton Bicycle Club, and the League of American Bicyclists for stepping forward, and especially to the law firm of Akerman Senterfitt for its untold hours (though I'm sure they know how many!) of effort.


vey said...

I hope all of this legal effort doesn't result in bike lanes running next to parallel parking spaces or sidepaths.

Mighk said...

Door zone bike lanes and sidepaths have been problems for years (no, decades). I don't see this decision making those worse. Indeed, advocates can always argue that they would be contrary to cyclist safety, which is part of the statute.

Anonymous said...

Let's remember that, under the statutory procedures established by the Florida Legislature to challenge decisions from administrative agencies such as FDOT, if the dispute includes a need to determine facts (such as how much something costs), the agency (FDOT) is required to refer the matter to an impartial third-party (the Department of Administrative Hearings or "DOAH") to conduct a "formal" hearing, with testimony, etc., to make a determination of what the "facts" actually are.

On the other hand, if the dispute is not about facts, but only the application of rules or laws to agreed-upon facts, the agency can proceed "informally" (which is what occurred here) and set the matter before a "hearing officer" of its choosing (in this instance, FDOT's Chief Engineer).

However, if during that informal hearing, it becomes apparent that there is a dispute as to facts, the agency is obligated, under rule, to stop the hearing and transfer the matter to DOAH to conduct the formal hearing we described above.

The questions posed by the court during oral argument, and apparently answered in the opinion were:

(1) Whether FDOT, by setting the matter for an "informal" hearing, implicitly agreed to the facts alleged in the complaint?

Answer: Apparently no.

(2) Once (and if) it became apparent during the informal hearing that FDOT was relying upon facts that the plaintiffs otherwise disputed in their complaint (such as, they asserted in the complaint that the cost of building the bike lanes did not outweigh the need), who has the burden of suspending the hearing and requesting a formal hearing, the plaintiffs or FDOT? If it was the plaintiffs, and if FDOT then places those otherwise disputed facts into the Final Order, are we then stuck with those findings of fact?

Answer: Yes. You are stuck with those facts, even though the focus of the hearing had nothing to do with the cost of bike lanes but only the strict legal question of whether the statute requires bike lanes at all.

The plaintiffs were able to identify (after the hearing) a case which appears to be almost directly on point, which concluded that a party cannot "waive" the right to a formal hearing, notwithstanding that it became apparent during an informal hearing that there was a factual dispute. The plaintiffs were able to file a copy of that case with the court for its review during its deliberations on the matter. Moreover, the court itself cited to another case supporting the plaintiffs. However, the court decided to disregard that precedent (as it is allowed to do) and go out on its own.

Did the plaintiffs' attorneys' drop the ball? No. Did the court find a way to give FDOT an "out" and to placate the wealthy Republicans who live on A1A? Absolutely.

Welcome to the United States, land of the free, home of the special interest.

Mighk said...

Thanks Anonymous for the clearest explanation I've heard on the find-of-fact hearing matter.

Anonymous said...

The court took a Solomon approach and split this baby down the middle. Yes, they said we (plaintiffs) were right in our pleadings. No, the FDOT does not need to go back and right its wrong; they must, though, follow the statute from here on in. The court has allowed, in its deciding to go against established precedent as mentioned by anonymous above, for further interpretation by the Florida Supreme Court. Stay tuned