County staff squashed VTA/County BPAC request

to restore non-motorists’ rights to use roadways; to undo SB 1233.

Akos Szoboszlay, President, Modern Transit Society (MTS)

May 9, 2007; links added Oct. 2007

For printing or copying, download Word file: moderntransit.org/restore/rebut.doc

A letter from the VTA/County BPAC to the County Board of Supervisors (BOS) (dated February 16, 2007) requested restoration of State law which the County caused to be passed without public input and by using deceptive tactics. [For background, read the short article or the full article with appendices].

The reply rejecting this request was written by Jane Decker, Deputy County Executive (but no longer with the County). It has six statements which are not based on fact, as described below under each quote. The rebuttal by the Modern Transit Society (MTS) follows each quote.

County’s legislative process; BOS votes re: SB 1233

Every year, the BOS creates a list of changes to State law that staff is supposed to lobby for. This list is called, “[year] Legislative Policies and Priorities.” Staff rejected the request from BPAC to add repeal of SB 1233** to the list for 2007, and it never came to a BOS vote.

BOS’ 2006 vote:

However, the BOS (on January 10, 2006), placed repeal of SB 1233 on the 2006 Legislative Policies and Priorities [Sources: see item #6 at this link]. The fact that the BOS voted to repeal SB 1233 is important because Michael Murdter (Director of County Roads) falsely stated to the City Council of Santa Clara (June 2006) that the BOS wants to impose more pedestrian prohibitions by citing SB 1233, when in fact, the last BOS action, just five months earlier, was to vote to seek repeal of SB 1233. [See quotes, audio clips, and Murdter’s letter to the City Council.]

BOS’ 2004 vote:

The 2004 Legislative Policies and Priorities initiated SB 1233: It had an item to “install” and “post” traffic signs on expressways, without informing the BPAC. It had no mention of prohibiting or expanding authority to prohibit, which is what actually occurred in the legal text that was drafted by County staff — but never disclosed to County citizens — and then passed by SB 1233 using more false statements and deceptions. [See deceptions at the County level and State level false statements and Three intentions of SB 1233 were contradicted.]

Quotes of Jane Decker, (former) Deputy County Executive, and rebuttals by MTS

1. Decker: “Virtually all expressway segments had long ago been designated as freeways by resolution of the Board of Supervisors” [BOS].

Rebuttal: This claim was withdrawn by staff in their revised staff report to the BOS, in 2004, after MTS informed County Counsel that it has no validity. Yet, it is used once again, as it was before, as justification to prohibit non-motorists.

The 1960s BOS had the intention of turning expressways into freeways, and the 1960s Santa Clara City Council had the intention of building a nuclear power plant where Mission College is today. Neither occurred. Freeway declarations are just one step in a process of converting an existing road into a freeway, including the acquiring of all rights of access. That process for converting to freeway was never completed for expressways. The 1960s freeway declarations have no validity for prohibiting non-motorists from expressways, even without the 2003 BOS policy that recognized that expressways are arterial roads, not freeways:

"The expressway vision statements all classify the expressways as arterials." [page 88 of the County Expressway Master Plan.]

Claim withdrawn: For at least 20 years, County staff has used this declaration — irrelevant today — to enact or keep prohibitions of both bicyclists (until 1991) and pedestrians from what are, in reality, arterial roads. The previous occurrence of this claim deserves special mention because it is well-documented. In 2003, MTS informed the BOS that the County Roads management refused to comply with Sunnyvale’s repeal of the pedestrian prohibition, and that staff had also violated BOS policy that supports wide shoulder use by pedestrians. County Roads staff merely had to remove pedestrians prohibited signs from Sunnyvale expressways to comply. The BOS referred the matter to staff.

In the resultant staff report, Murdter stated to the BOS’ HLUET Committee (on February 2, 2004) that "Board has designated nearly all expressway mileage as a freeway." — basically the same as Decker’s claim (above) — and used that as the rationale for refusing to comply with Sunnyvale’s repeal of the pedestrian prohibition. MTS then informed County Counsel that the claim was false. This claim was removed from Murdter’s staff report to the full BOS (on 5/4/04, agenda #63), which was effectively a retraction. [See more staff’s statements in 2004 which were withdrawn, links to staff reports, and the successful MTS rebuttals.]

The BOS vote was to order removal of pedestrians prohibited signs in Sunnyvale (on 5/4/04) and staff removed the signs, one year after the repeal.

The 1960s freeway declaration simply has no legal or policy value today, and Decker’s claim to the contrary needs to be retracted, just as the same claim by Murdter was withdrawn in 2004.

2. Decker: SB 1233 “did not expand County’s authority.”

Rebuttal: The only purpose of SB 1233 was to greatly expand authority, and it did that in several ways:

1) It greatly expanded authority statewide for all jurisdictions to prohibit non-motorists.

2) In this County, expressways are in City jurisdiction, and it greatly expanded the authority of cities to prohibit non-motorists from expressways.

3) It added a new definition of “expressway” to the Vehicle Code, such that almost any road – especially arterial roads since most already have limited driveway access, – can be declared an “expressway” for the purpose of prohibiting non-motorists. The new definition of “expressway” is “a highway having partial or complete control of access.” [CVC 314 referencing SHC 941.4 of which section h is excerpted]

4) The County can prohibit non-motorists from roads which meet the new definition if located in unincorporated areas.

5) The Silicon Valley Bicycle Coalition and the Modern Transit Society used the right of access, which was eliminated by SB 1233, to force removal of many 'Pedestrians bicycles ... prohibited' signs on expressways, including all signs on:

• Lawrence in Santa Clara circa 1992 — which as a result, today has sidewalks and bike-lane standards the entire way, and

• Capitol in San Jose in 1997. By then, all 'bicycles prohibited' signs on Capitol were changed to "bike lane" signs, and the shoulders, formerly claimed to be too dangerous to allow bicycles, had the "bike lane" symbol painted on them.

Due to SB 1233, the 'bicycles prohibited' and/or “pedestrians prohibited” signs can now be put back by County Roads by a simple vote of the respective city council on these and all other expressways by re-imposing bicycle and/or pedestrian prohibitions. Authority was certainly expanded, contrary to Decker’s claim.

3. Decker: “Primary reason [for SB 1233] was ... safety.”

Rebuttal 1: SB 1233 adds nothing to safety. Safety will be achieved by complying with existing BOS policies and orders. The likely reason for SB 1233 is to eliminate pedestrian facilities, including shoulders, and eliminate non-motorists from these arterial roads so that the entire right of way would be given over to motor vehicles.

Furthermore, prohibiting pedestrians and posting “pedestrians prohibited” signs has never stopped pedestrians because there is no practical alternative route in most cases. VTA has recognized that the hierarchical street pattern “forces” pedestrians to use arterial roads, including expressways. Posting “pedestrians prohibited” signs decreases safety because a) County Roads does not implement BOS policies and orders and b) for pedestrians who take detours, it forces needless crossings of intersections (typically, five times as many), compared with taking the shortest and most direct route along the expressway. SB 1233, if used to expand prohibitions, would actually increase the risk of a fatality for these reasons.

The BOS policy, since 1991, has been to create pedestrian paths regardless of whether or not there are pedestrian prohibitions, and then obtain repeal of those prohibitions.

Rebuttal 2: In a presentation to VTA/County BPAC on June 8, 2005, County Roads staff stated the repeal of the pedestrian prohibition by Sunnyvale, in 2003, as their first listed (main) reason for SB 1233, and is shown in their handout. It seems that County staff attempted to thwart Sunnyvale’s repeal with SB 1233, but didn’t quite achieve that.

4. Decker: “Does not expand the County’s statutory ability to restrict or prohibit bicycles”

Rebuttal: Everything stated in rebuttal #2 (above) is equally applicable to both bicyclists and pedestrians in the law. Not only the County, but all counties, cities and Caltrans can now prohibit bicycles from any road in their jurisdiction that has a “partial ... control of access,” which includes most arterial roads. Prior to SB 1233, non-motorists could only be prohibited from freeways.

5. Decker: “SB 681 (Simitian) was not successful”

Rebuttal: This bill was due to the efforts of advocates who met with Senator Simitian, not County staff. Unfortunately, staff appears to have taken no lobbying action in Sacramento with regard to repeal of SB 1233 despite the BOS vote to do so.

SB 681 came to a vote in the Senate Transportation Committee in Sacramento, where it passed but then the Bill was dropped by Senator Simitian due to limited time and staff resources. This occurred even before the BOS vote to seek repeal. Staff should have drafted their own bill and lobbied for it, as they were directed by the BOS vote. Staff uses their claim that SB 681 “was not successful” as justification not to comply with the BOS directive, and why staff “did not include further action ... in ... [the] 2007 legislative priorities.”

Staff, in fact, opposed repeal and placement on the 2006 Legislative Policies list at the BOS’ Legislative Committee, but lost the vote. They are achieving their desire despite losing the vote, by non-compliance with the BOS directive. And, that is likely the reason why staff “did not include further action,” not that SB 681 was “unsuccessful” as staff claims.

Both Murdter and Dan Collen spoke to the City Council of Santa Clara last year, and cited SB 1233 to show that the BOS wants more pedestrian prohibitory ordinances — despite the last BOS vote for repeal. [See quotes, audio clips, and Murdter’s letter to the City Council.] They also falsely stated that the BOS opposes shoulder use by pedestrians when in fact the 2003 Board policy states:

"[Wide] shoulder or path facilities can serve for occasional pedestrian use." [page 93 of County Expressway Master Plan].

Murdter and Collen were apparently believed by 4 of the 7 council members who voted postpone a decision on allowing pedestrians to use pedestrian paths and wide shoulders along San Tomas.

All these facts indicate that County staff is working against repeal of SB 1233. Staff is putting effort into obtaining more pedestrian prohibitions, rather than: (1) restoring pedestrians’ rights by opposing repeal of SB 1233, and (2) complying with the BOS policy to “encourage cities to repeal prohibition ordinances ... ” [quote #3, see list of Board Polices and Orders] by fighting against repeal.

6. Decker: “Focus efforts on ... additional funding ... as the ultimate solution to this issue.”

Rebuttal: The ultimate and prompt solution is compliance with existing Board policies and orders. It costs very little to create unpaved pedestrian paths along the entire expressway system, which was the Board order in 1991, but never complied with. Funding, in fact, has already been approved by the Board at $75,000 per year [quote #1 and #2, list of Board Polices and Orders], but no additional unpaved paths were created except by pedestrians’ shoes.

** The term SB 1233 used here refers only to portions of SB 1233 that were “sponsored” by Santa Clara County, since the vast majority of the bill was unrelated, and more-over, was used to hide the legal text drafted by County staff.

For more information, see

Expressway topics, links page

SB 1233 contents, links page

SB 1233 short article.

This article with links to sources is uploaded to: moderntransit.org/restore/rebut.html

For printing or copying, download Word file: moderntransit.org/restore/rebut.doc

Modern Transit Society

moderntransit.org PO Box 5582, San Jose CA 95150 408-221-0694

Original file = rebut.pages