Mr. Murdter's self-contradictions

Modern Transit Society

web site: moderntransit.org PO Box 5582, San Jose CA 95150 phone: 408-221-0694

March 29, 2004

To: Jane Decker, Deputy County Executive, Santa Clara County

Cc: Debra Cauble, Deputy County Counsel, Santa Clara County

Subject: Mr. Murdter's self-contradictions

Dear Ms. Decker,

To summarize my last email (of 3/16/04), I pointed out that Mr. Murdter, in his memo of 2/2/04 to the County Supervisors (the HLUET Committee) stated, in effect, regarding expressways:

That he can prohibit pedestrians at will. (He can't.)
That the County has jurisdiction. (It doesn't, the cities do.)
That shoulders are unsafe. (They aren't.)
That BOS opposes pedestrians on shoulders. (They support it!)
That expressways are freeways. (The BOS recognized ALL expressways to be arterials.)

The last point was made by Mr. Murdter because he claims that declaring expressways "freeways" 40 years ago gives him special powers to post prohibitory signs today, with ability to ignore both the right of access and the lack of an ordinance stipulated by his referenced Vehicle Code 21960, and as elaborated by County Counsel. The fact is, County highway engineers weren't even able to legally post prohibitory signs even 40 years ago until those stipulations were met, yet often did anyway in violation of the law, continue to do so today, and now ask for BOS approval for the violations.

In so doing, Mr. Murdter contradicted ALL relevant County Counsel legal opinions and the County Expressway Plan, as described in my last email (and in web pages accessed by the links).

Jurisdiction and ordinance self-contradictions:

Mr. Murdter’s statement: "Vehicle Code ... provides ... authority for the County to prohibit pedestrians ..."

Mr. Murdter's self-contradiction: "... the cities have the final say in these [traffic regulation] areas."

First, he states that the County has jurisdiction to prohibit, then implies the cities have jurisdiction. Subsequently, in his table of recommended sign postings, he further contradicts both of these statements, thus, a three-way contradiction. In his table, he shows posting signs (more specifically, not removing signs) where there is neither a city ordinance nor County ordinance prohibiting pedestrians, as a result of repeal of city prohibitory ordinances by cities, and the County never enacting such ordinance (since, of course, it doesn't have jurisdiction, contrary to one of Mr. Murdter's claims). In his table, about half the lines are contradicted in this manner. These locations and details for verifying the ordinances (or lack of) are at:

http://moderntransit.org/expy/index.html#violations

Right-of-access self-contradictions:

Mr. Murdter’s statement: "access can only be prohibited on portions between intersections where all right of access have been acquired."

Mr. Murdter's self-contradiction: The table by Mr. Murdter seeks to continue leaving signs posted even where there is right of access. While there are many cases of this contradiction (and simultaneously, violation of the law), I will describe two cases.

First, I need to explain right of access. The next paragraph is the real-world description of County Counsel’s (Kretchmer’s) legal opinion [11/12/96]. We have used this description repeatedly to force the County highway engineers to remove signs, including in 1997 when Murdter was Director. They know full well what the law is, but are now, in my opinion, trying to fool the BOS and yourself to approve the violations. If you have any doubts that the description is valid, then please have County Counsel verify that for you (as they have in the past, repeatedly, to the County highway engineers).

The right of access is proven by the existence of a driveway or other entrance to private property. Where there is no entrance, it does not necessarily signify that right of access is acquired. The County Property Records Department has the information whether right of access was acquired, for each property. The County should verify that they are in compliance with the law by checking property records of all properties abutting the freeway for every block they desire to post prohibitory signs. (The term "freeway" is used both by the Vehicle Code and County Counsel, and is used here. Mr. Murdter used the term "street" in his second paragraph, which is legally incorrect.) Considering that the County Roads and Airports Department (and predecessors) have a history of posting illegal "BICYCLES PROHIBITED" and "PEDESTRIANS PROHIBITED" signs, it is strongly suggested that verification of compliance with the law be performed in this manner.

CASE 1: San Tomas Expressway near Forbes Ave.

The photo (left) shows a pedestrian entrance to a condominium complex on San Tomas Expressway, south of Forbes Ave. The next photo is a prohibitory sign prohibiting pedestrians from accessing the entrance. It exists today, and Mr. Murdter plans to continue to leave it posted (as per his table, fourth line), thus contradicting himself and the law.

CASE 2: Capitol Expressway near Excalibur Ave.

The pedestrian walking on the pedestrian path (left photo) on Capitol between Massar and Excalibur (south side) is "prohibited" by illegal signs (next photo). A shopping center has a driveway on that block, proving that "all right of access" is NOT acquired (below aerial photo, visible near top left). The prohibition is recommended for keeping by Mr. Murdters' table, third line, thus contradicting his statement about right of access.

Three additional points must be made about the photo with the “prohibited” pedestrian on the pedestrian path:

Notice that there is also a wide shoulder in addition to the pedestrian path (which is used by the pedestrian). The BOS supports both shoulder and pedestrian path use, so BOS policy is also violated by posting “PEDESTRIANS PROHIBITED” signs.
Mr Murdter states in his table for this location (fourth line): "Side streets provide better and safer access." Both these claims are false. First, the detour he wants to force pedestrians into is twice as long as walking on the pedestrian path. It is not better, because otherwise the pedestrians would take it. (Typically, arterial roads are on half mile grids, so taking the next arterial usually means a one-mile walking detour.)
Mr Murdter's claim that the side street is safer is also proven false by accident statistics. By far, the most dangerous action by pedestrians is crossing the road. Mr. Murdter wants to force the pedestrian into crossing three extra intersections by his detour, thus increasing accident risk for the trip.

Safety

Specific evidence for safety of Santa Clara County expressways is from a study by the Norman Mineta Transportation Institute: Essentially, the study shows that only 2% of accidents involving bicycles on expressways were not at intersections. Here are details:

Out of 56 bicycle-vehicle accidents in the 9-year period of the study on “freeway-like” expressway portions [meaning few intersections, few driveways], 37 (or two-thirds) were “right angle” collisions and only one accident was the “overtake” category [meaning, run into from behind]. For "right-angle", there was no distinction made between bicycle going along the expressway, car along street or vice versa. Other intersection accidents were not right angle, but another angle, such as a right-turn-on red, failure to yield to bicycle. There was no similar pedestrian study.

While expressway intersections normally have four crosswalks, even those crosswalks are much more dangerous than walking along the shoulder or path. Yet, the premise of County highway engineers has been that shoulders and pedestrian paths are dangerous for bicycles and pedestrians. As I showed on the MTS web site, these phoney claims were and are made entirely for political purposes. They want to eliminate the shoulder in future lane additions, without going to the minor expense of relocating pedestrian and bicycle facilities (which the shoulders and path, in fact, are). Details are at:

http://moderntransit.org/expy/policies.html

and

http://moderntransit.org/expy/fhwa.html

Bottom-line questions for safety are:

If shoulders are unsafe for bicycles (as the County highway engineers previously claimed, until they lost that fight), why were the signs changed from “BICYCLES PROHIBITED” to “BIKE LANE”?
If shoulders are safe for bicycles, how can the same shoulders be unsafe for pedestrians?
If bike lanes are unsafe for pedestrians, why does Vehicle Code 21966 allow pedestrians to walk in a bike lane where there is no adjacent sidewalk?
Why is a flat, unpaved pedestrian path unsafe for pedestrians?
Why do the County highway engineers consistently refuse to address or discuss the safety of the walking trip (and formerly, the bicycle trip), and that their forced detours necessitate the crossing of many additional intersections, increasing the accident risk?

Conclusion

All prohibitory signs must be removed from Capitol (about 90% already have), Central (about 80% already have) and Foothill Expressways. For Foothill in Palo Alto and for Capitol, it's because the right of access is not acquired. Elsewhere, it's because of a lack of a prohibitory ordinance (or for both reasons). In addition, San Tomas has some illegal signs that are so proven above. For all signs that they want to keep, property records must be checked to ensure legal posting.

Please inform me whether the County Executive plans to direct Roads and Airports to comply with the law and BOS policy, and if the staff report of 2/2/04 will or will not be forwarded to the full Board. According to the Agenda Clerk (Debbie), that is scheduled for April 20. The practice of not releasing the staff report to the public until the Friday before the BOS meeting to minimize rebuttal efforts, even if written weeks earlier, would give us just one working day to rebut and meet with the Supervisors. We need a copy much sooner.

The simplest solution for this issue is for Mr. Murdter to simply remove signs in compliance with law --and simultaneously, BOS policy-- and then report "compliance achieved" to the BOS. Such action would take only about three hours of staff time.

Much greater time has already been wasted by Mr. Murdter, including time of the Supervisors, County Executive's office, County Counsel's Office, and the Roads and Airports staff. The latter was not only wasting time doing the staff report (instead of spending a fraction of that to remove signs), but in the audience of the HLUET Committee meeting, sitting several rows back, were Branch Manager Jon Elson and Traffic Engineer Masoud Akbarzadeh. That's not a productive use of engineering time, but rather, more for their entertainment. As one of many victims of the County highway engineers —people injured or killed by prohibiting use of the safest route or by not complying with BOS safety requirements— I don’t consider this entertaining.

Sincerely,

Akos Szoboszlay,

Vice-President

Links

The 1996-7 fight for walkers' rights; Table of BOS policies: http://moderntransit.org/expy/bos-policies.html

Mr. Murdter's memo: http://moderntransit.org/expy/ra.html

MTS abridged rebuttal, also with background: http://moderntransit.org/expy/rarebut.html

MTS full rebuttal: http://moderntransit.org/expy/bos-letter-web.htm

Montague at Kruse (true danger example): http://moderntransit.org/expy/safety-actions2.html

The main MTS expressway topics, links page is at: http://moderntransit.org/expy

Also see related articles:

Don't force Pedestrians and Bicycles into the acceleration lane!
Dangerous policies of County highway engineers
Analyses of Pedestrians along Expressways

or the Expressway topics, links page.

Also see related articles:

Don't force Pedestrians and Bicycles into the acceleration lane! Dangerous policies of County highway engineers Analyses of Pedestrians along Expressways

or the Expressway topics, links page.

Don't force Pedestrians and Bicycles into the acceleration lane!
Dangerous policies of County highway engineers
Analyses of Pedestrians along Expressways