Tempe’s Local Ordinance

[Council Meeting 7/31/2019 is intended to be “final read” and passage of this somewhat flawed ordinance, jump below to #reference for links to document]

Background is two events; one was the death of Xiaoying Wen who was killed in a crosswalk in Nov 2017 proceeding with a walk signal; after being struck by a driver who made what would normally be considered a “bad left”. Tempe Police stated that due to local law, the bicyclist was at fault. Many people, including me, think of that as being a wrong, or wrongful determination — whether it be a wrong interpretation or a bad ordinance.

The second event, later, was the veritable explosion of escooter usage due to dockless scooter sharing companies beginning DEVICE operations in Tempe; I forget when but it was probably Spring 2018. Existing local (and state) law was hazy or didn’t apply well, e.g. the local motorized play vehicle rules. (there had always been a fair number of skateboards, but besides escooters, a steady increase in powered gadgets: like electric skateboards)

Another potential source of confusion was added by an ebike ordinance passed by Tempe in January 2017.; this added a bunch of verbiage to Chapter 7, Bicycles. (Arizona then added their own changes to define ebikes in Spring 2018)

UPDATE: SB1398 , which makes escooters legally equivalent to bicycles, PASSED both AZ legislature house and senate (unanimously, by the way) and signed by governor  — it should be (double)checked for congruence with the proposal. That bill defines, at the state level, escooters and makes them effectively equivalent to ebikes (which were already equivalent, with some limitations, to bicycles).

First Principles

Rules of the road are already, and best, defined for bicyclists in state law; the Arizona Revised Statutes (ARS). Bicyclists riding in the road have the rights and duties (R&D) of the driver of a vehicle (§28-812), as well a few specific duties; the most remarkable probably being that they have a special duty to facilitate passing of faster traffic, but only under specific conditions, and only when safe… the so-called as-far-right-as-practicable (AFRAP, sometimes referred to as far-to-the-right, FTR, rule) law, 28-815.

It is imperative that localities do not change the rules of the road, they need to be consistent statewide for everybody’s safety and benefit. Any local ordinances, whether intentional or as an unexpected/unanticipated side-effect must make sure they do not muck up the road rules embodied in ARS. (see here for background on powers of local authorities)

The sidewalk (and off-road paths), however, have a different story — ARS’s rules-of-the-road don’t say anything about how bicyclists should or can ride there. There is a 1980 AZ Supreme Court decision, Maxwell that more-or-less grants bicyclists the R&D of pedestrians when on sidewalks, including continuing along through driveways and crosswalks. This decision is still “good law”, in other words, the AZ legislature has failed to make any rules regarding bicyclists’ use of sidewalks.

As a result, localities can — and probably should — define rules of movement for bicyclists on sidewalks (or perhaps even ban them?) and paths. Tempe does have existing rules, Chapter 7 Bicycles. Including the novel (I mean novel relative to other Arizona municipalities) rule that bicyclists on sidewalks must go only in the direction of adjacent traffic.

It is recommended to simply grant bicyclists the R&D of pedestrians in order to make clear what’s supposed to happen when sidewalk cyclists are “crossing”… Here is how that can be worded, from the UVC Millenium Edition:

§ 11-1209—Bicycles and human powered vehicles on sidewalks
(a) A person propelling a bicycle upon and along a sidewalk, or across a roadway upon and along a crosswalk, shall yield the right of way to any pedestrian and shall give audible signal before overtaking and passing such pedestrian.
(b) A person shall not ride a bicycle upon and along a sidewalk, or across a roadway upon and along a crosswalk, where such use of bicycles is prohibited by official traffic—control devices.
(c) A person propelling a vehicle by human power upon and along a sidewalk, or across a roadway upon and along a crosswalk, shall have all the rights and duties applicable to a pedestrian under the same circumstances.

List of reference documents (#reference)

A major consolidated proposal was put forth in April of 2019. For reference; I preserved a copy because I have problems with these links going dead. Anyway opentownhall.com/portals/99/Issue_7376 page was set up for public input/dissemination.

  • April 2019 Proposal
  • Existing Chapter 7, Bicycles “printed” from municode 4/10/2019
  • Ebike (Chapter 7) Ordinance, as passed 1/2017
  • as always, link to ARS here
  • Council meeting 6/6/2019 (agenda) was the “first read”; June 6 version of proposal; here is staff explanation; the outcome was nobody spoke and no questions were asked; there is apparently no voting at the first reading. Video of meeting (non-consent items B5 & 6). The city attorney said something very briefly about 25mph but I didn’t follow what that meant.
  • An unofficial 6/19 draft (removed).
  • Council Meeting 6/27/2019 agenda; will be the new “first read” of the very slightly updated ordinance — 6/27 version. (this supersedes what I had been calling the “unofficial 6/19 draft). Here is the staff explanation letter.
  • Council Meeting 7/31/2019 agenda; will be the  “final read” of the very slightly updated 6/27 ordinance; as far as i can tell only typo’s only one substantive change, a good one, changed difficult to impossible, see 19-151D below.
    Here is the staff explanation letter.
    Here is the as of 7/30 version for the 7/31 meeting
    Full video is linked at this page.
    (presumptively going to be the one up for final vote). Yellow highlights reflect changes from 6/27 to ~ 7/28; whereas blue is one changes made ~ 7/30.
  • Result of 7/31 meeting is no vote was held and a few tweaks to sidewalk rules were made.

It’s extremely difficult to follow the markup because large chunks of Chapter 7 were moved wholesale into Chapter 19; this makes even pre-existing code appear as new (shows up as ALL CAPS in the mark-up) even though it’s not actually new. But, conversely, some pieces of Chapter 7 were simply deleted, though there’s no way to tell from the markup what parts were deleted.

This complicated-looking chart is meant to describe what’s codified in the proposal, it was presented to the Transp Commission at their regular meeting 4/9/2019; p11

In sum, existing Chapter 7 Bicycles (and Ebikes) was entirely eliminated and combined with Chapter 19, which covered motor vehicles and Pedestrians. The category of “motorized play vehicle” was eliminated.

New categories of Human Powered Vehicles and Non-Human Powered Vehicles (I refer to as HPV, despite that being a virus, and NHPV) were defined. The idea being Human powered referring to exclusively human powered, and everything else is Non Human Powered.

Issues

I am very worried that hidden within this huge ordinance there will be some gotcha’s. It’s a lot to get one’s mind around but here goes. Some of these are possible drafting errors (like apparently dropping the narrow-lane exception!), others are just suggestions that would streamline the language

Does the proposal “play nice” with last year’s (2018) AZ state ebike law, as well as as this session’s (2019) new escooter law?

Issue #0 Not and Issue per se, but: Dismounting is not in the law or code

Preface: after a longer phone conversation; this isn’t exactly an issue but it needs to be made clear during outreach to inform the public about what is and isn’t illegal; I’ll leave the information below for reference.  The more important crosswalk-related issue is still Issue #1, below.

The chart says that the law allows Bicyclists/ebikes/NHPVs to use crosswalks but there’s an asterisk that says dismounting is required. I’m not seeing that. Someone suggested it’s already in the law– I’ve never seen it. Saying/claiming dismounting is required appears to be some novel (mis)interpretation of codes or statute.

Here is a general article covering how, at the AZ state level,  sidewalk riding is addressed; in particular an understanding of Maxwell is important; in particular, sidewalk bicycle riders do not all of a sudden become drivers of vehicle upon entering a crosswalk. That same article also links an analysis by the Tucson City Attorney’s office concluding that it’s not illegal for a bicyclist to ride through a crosswalk — even though it’s (generally) illegal to ride on the sidewalk in Tucson.

Setting that aside — I would oppose a requirement to dismount for reasons I may elaborate on later. I don’t like that Tempe has what I’ve referred to in my LAB Bike Friendly Community feedback as a “sidewalk riding culture“, but I don’t think making a dismount requirement is a good way to address it.

It sounds as though they (the working group) are casting about for another approach (not as yet in the proposal) would codify how sidewalk bicyclists are expected to enter crosswalks, which would moot this issue. Here, e.g. is what the City of Boulder has:

7-5-5. – USE OF CROSSWALK.
(a) No person shall immediately approach, enter, or traverse a crosswalk which spans a roadway at a speed greater than eight miles per hour.
(b) Persons driving bicycles across a roadway upon and along a crosswalk from a sidewalk or path… shall have the duties applicable to pedestrians under the same circumstances.
(c) Such persons similarly have the rights of a pedestrian, but only if the bicyclist was entitled to use the sidewalk or path, and the approach, entry, and traversal of the crosswalk are made at a speed no greater than a reasonable crossing speed so that other drivers may anticipate the necessity to yield when required.

Interestingly apparently section a is intended to (also) apply to pedestrians (e.g. runners).

Issue #1 Inequity in crosswalk-yield rule was not addressed

[This is the same language and was carried over from existing 7-52D; Councilman Keating told me by email June 7 “We haven’t really taken a look at the bike codes yet. Scooters took priority and it was an extremely long process. We are planning at (finally) getting to bikes once the scooter regulations pass. This is something we are still going to look at” ]

I (still) don’t think the new law is equitable to bicyclists (et al,) with regard to entering crosswalks from a sidewalk; note that even if entering on a green (or ped walk) signal, the bicyclist must unconditionally yield, that was the Xiaoying Wen crosswalk fatality situation :

SEC. 19-212.(C) ANY PERSON RIDING A BICYCLE, ELECTRIC BICYCLE OR NON-HUMAN POWERED VEHICLE ON A SIDEWALK OR SHARED USE PATH THAT IS ABOUT TO ENTER OR CROSS A ROADWAY SHALL YIELD THE RIGHT-OF-WAY TO ALL TRAFFIC ON SUCH ROADWAY.

Along that same vein; though this is NEW language — i don’t like the word chosen here “difficult”… This appears to be a watered-down version of ARS 28-792.(which used the word ‘impossible’)… BREAKING NEWS, in the final 7/31 version, the word difficult was replaced with impossible which I reflected with a strikethru below, so no longer an issue as fas as I’m concerned.

Sec. 19-151. (D) NO PEDESTRIAN OR HUMAN POWERED VEHICLE OPERATOR SHALL SUDDENLY LEAVE A CURB OR OTHER PLACE OF SAFETY AND WALK, RUN, OR RIDE INTO THE PATH OF A VEHICLE WHICH IS SO CLOSE THAT IT IS DIFFICULT IMPOSSIBLE FOR THE OPERATOR OF THE VEHICLE TO YIELD

For one possible way to address the issue see Issue #0, immediately above and what was done by City of Boulder.

I remain hopeful this issue can be addressed equitably… Councilman Keating told me January last year “It’s my intention to change this code so that cars would need to yield to bicyclists in the crosswalk, not the other way around”.

Issue #2a

Not a bicyclist issue but I’ll mention in passing; Sec 19-151E, a new subsection would ban kids (and everybody) from roller skating, skateboarding, using a wagon, etc,  in any street… Was that really what was intended?

Issue #2 Merging the Ped rules has problems / Is a bicycle a “human powered vehicle” / ‘Vehicle’ confusion?

[update 6/19 draft unofficial; shown below in RED adds language to  except “operators of bicycle”, but only for SubSec E; this is okay as far as that goes, but there remains definitional confusion, e.g. a wrong definition of the word ‘operator’ remains; and there’s the over-arching wrong-ness of calling a bicycle a vehicle when it is not A bicycle, along with most other gadgets being discussed, including all the human powered, and even the defined powered ones like ebikes, is a ‘device’ and NOT a ‘vehicle’ by ARS definition. The ordinance has no definition of vehicle.
And on top of all that; my concerns about a, b and c remain; the action of “crossing” isn’t defined and although it appears to be intended for sidewalk cyclists, it’s not obvious that it can’t be used against roadway cyclists]

There seems to be some serious definitional confusion here; I am not sure what a “human powered vehicle operator” is… Here are two definitions from the 6/6 proposal, one of them is pre-existing and apparently now wrong (my emphasis added):

The proposal has a definition for “human powered” (which explicitly says with examples that bicycles and skateboards are human powered). Note that in ARS bicycles and for that matter skateboards (because they are “human powered”) are explicitly NOT vehicles.

HUMAN-POWERED MEANS MOVEMENT ACCOMPLISHED OR PROPELLED BY HUMAN POWER, SUCH AS WALKING, RUNNING, OR BY ANY VEHICLE OR DEVICE WHICH IS DESIGNED AND EQUIPPED TO BE PROPELLED BY HUMAN POWER, WITHOUT ANY ASSISTANCE BY A MOTOR OR POWER UNIT, INCLUDING A BICYCLE, ROLLER SKATES, SCOOTER OR SKATEBOARD

Operator means a person who operates or is in actual physical control of a motorized play vehicle or a motorized skateboard upon a public roadway, sidewalk, right-of-way, park, bicycle path or any other public property used for the operation of motor vehicles.

[note that the term vehicle is not defined in Tempe ordinances]

So then who or what is a “human powered vehicle” and “human powered vehicle operator”, exactly who is the intended target of this section? If it’s bicyclists, there are major problems for bicyclists here… 1) sub sec E bans them from riding on any roadway, and 2) it  introduce this nebulous term “crossing”.

Read at face value, this section appears to ban bicyclists (and skateboardists) from riding in the roadway; assuming they are, by Tempe’s definitions, the operator of a human powered vehicle.

Adding carte blance “OR HUMAN POWERED VEHICLE OPERATOR” onto the existing ped rules a, b, and particularly the (new) e has unclear results because the idea of “crossing” a street on a bicycle isn’t defined. If a bicyclist is riding along a street — that’s ok, right? — he is going to “cross” other streets, and not in a crosswalk, nor should he.

Another obvious glaring example that this section is messed up is Sec. 19-151 would make it a violation for a bicyclist to exit a driveway.!? or for that matter to simply be riding in the road; that’s right,  subsection E makes it illegal to ride in any road in Tempe. [for bicyclists; this was “fixed” by excepting them in the 6/19 draft]

This should be cleared up by simply extending the R&D of pedestrians to bicyclists (and whomever else); but only when they’re operating as peds — as is done in the suggested language of the UVC, quoted above — and eliminating the new subsection E.

Sec. 19-151. – Crossing a roadway AND PROHIBITED OPERATION.
(a) No pedestrian OR HUMAN POWERED VEHICLE OPERATOR shall cross the roadway within the central business district other than within a marked or unmarked crosswalk.
(b) Every pedestrian OR HUMAN POWERED VEHICLE OPERATOR crossing a roadway outside of the central business district at any point other than within a marked or unmarked crosswalk shall yield the right-of-way to all vehicles upon the roadway.
(c) No pedestrian OR HUMAN POWERED VEHICLE OPERATOR shall cross a roadway where signs or traffic control signals prohibit such crossing.
… (D) was dealt with in Issue #1
(E) NO PERSON OPERATING A HUMAN POWERED VEHICLE, EXCEPT FOR OPERATORS OF BICYCLES, SHALL GO ENTER UPON ANY ROADWAY EXCEPT WHILE CROSSING A STREET IN A CROSSWALK OR IMPLIED CROSSWALK, AND WHEN SO CROSSING, SUCH A PERSON SHALL BE GRANTED ALL OF THE RIGHTS AND SHALL BE SUBJECT TO ALL THE DUTIES APPLICABLE TO PEDESTRIANS. THIS SUBSECTION SHALL NOT APPLY UPON ANY STREET WHILE SET ASIDE AS A PLAY STREET.

p.s. What is a “play street”?; it needs to be defined. (this was addressed in the 6/19 unofficial draft by removing last sentence)

So best to address this by extending the R&D to sidewalk cyclists in some fashion (see issue #0 and 1); at which point this whole section could just go back to what it was in existing code.

Issue #3 Tempe shouldn’t have an AFRAP code!

This section, in keeping with First Principals, above, shouldn’t exist in local codes, as it only affects roadway use which is covered quite neatly by ARS; compare to ARS 28-815A; Here is the proposed code (the strikethru and red reflects changes made between April and 7/30/2019):

SEC. 19-214. – GENERAL RULES AND PROHIBITED OPERATION.
(H) A PERSON OPERATING A BICYCLE, ELECTRIC BICYCLE, OR NON-HUMAN POWERED VEHICLE ON A ROADWAY AT LESS THAN THE LAWFUL NORMAL SPEED OF TRAFFIC, AT THE TIME AND PLACE AND UNDER THE THEN EXISTING CONDITIONS, SHALL RIDE AS CLOSE AS PRACTICABLE TO THE RIGHT-HAND CURB OR EDGE OF THE ROADWAY, EXCEPT UNDER THE FOLLOWING CONDITIONS AND WHEN THE MOVEMENT CAN BE MADE SAFELY:
1) IF OVERTAKING AND PASSING A BICYCLE, ELECTRIC BICYCLE, NON-HUMAN POWERED VEHICLE OR VEHICLE PROCEEDING IN THE SAME DIRECTION;
2) IN PREPARING FOR A LEFT TURN AT AN INTERSECTION OR INTO A PRIVATE ROADWAY OR DRIVEWAY;
3) IF REASONABLY NECESSARY TO AVOID HAZARDOUS CONDITIONS AHEAD IN THE ROADWAY; OR
4) IF THE LANE IN WHICH THE PERSON IS OPERATING THE BICYCLE, ELECTRIC BICYCLE, OR NON-HUMAN POWERED VEHICLE IS TOO NARROW TO TRAVEL SAFELY SIDE BY SIDE WITH ANOTHER VEHICLE, BICYCLE, ELECTRIC BICYCLE OR NONHUMAN POWERED VEHICLE.

UPDATE: it turns out the language in the proposal was borrowed from the, now removed, motorized play vehicle codes (it’s existing 19-24a). It made some sense when there were motorized play vehicles (because they didn’t have the R&D of bicycles); but it’s still the case that Tempe didn’t have and doesn’t need their own custom AFRAP law for bicycles.

If for some good reason, Tempe insists on inserting it, there are several problems with this compared to the ARS version —

“except under the following” should be “except under any of the following” as it is in ARS.
I don’t understand what this phrase is doing there “when the movement can be made safely”; Although I don’t see any problem with it
I see #3 was re-worded; although I don’t see any problem with it [correction: there is a problem. Tempe adds ‘ahead in the roadway’; that’s not in ARS and is incorrect and shouldn’t be there]
Number #4 has a huge mistake — it needs an additional “vehicle” added to the list of things that need to be shared with. As a matter of fact, i really don’t see why it just doesn’t read the same as ARS — because all those other things (bicycle, ebike, non-human powered vehicle) are never any wider than a vehicle. Here’s how that would look, compared to compared to what is written in the proposal (note: I added back the phrase “within the lane” because that appears in ARS and was omitted from the proposal for unknown reasons):

4. If the lane in which the person is operating the bicycle, electric bicycle, or non-human powered vehicle is too narrow to travel safely side by side WITHIN THE LANE with another VEHICLE.

Number 4 — as written in the proposal — would in effect remove the narrow lane exception because it omits ‘vehicle’; the narrow lane exception is arguably the most important exception.

UPDATE 6/6 version: In the version presented to the 6/6 council meeting (and all these issues remain in the 6/19 draft) there were two changes relative to the May proposal…

First: The phrase “less than the normal speed of traffic” (which is also verbatim from ARS) was changed to “less than the lawful speed of traffic”. I’m not sure how I feel about this. Why not just use the language from ARS? — update; this was changed very late, 7/30 see chronology above in reference documents, back to “normal”; thereby matching original and ARS wording —

Second: In exception 4, where it used to read “another bicycle, …” now reads “another vehcle (sic), bicycle, …”. This is supposed to alleviate the concern noted above about narrow lane exception and bring it into congruence with the ARS 28-815A; and it almost does, except for that fact that invariable people will try to interpret the Tempe narrow lane lane exception as, e.g. “too narrow for a bicycle and another bicycle” which of course almost never occurs.

And the following problems remain unchanged:

The ‘any’, as appears in ARS and mentioned above remains missing. People will try to interpret this to mean all four conditions must exist for the exception to apply. (regarding this request, staff said “Adding ‘any of’ is not necessary as the 19-214(H)(3) ends with ‘or’ making it clear that any one of the conditions would be sufficient and not all of the conditions need to be met.” — Elizabeth Higgins email to Jeff C 7/28)

The “within the lane” phrase also remains missing from exception 4; people will attempt to misinterpret that as well.

The “in the roadway” in exception 3 should be struck.

See below for suggestion on correct wording.

— end of commentary on the 6/6 update.

To review more generally, here’s how an AFRAP law is designed to work, as embodied in ARS, and dozens of other states. It’s a convenience statute to facilitate in-lane passing but only where safe. Bicyclists are permitted to, and trained to, move left in narrow lanes (specifically to not ride to the far right) to discourage close passes and sideswipes, and motorists overtaking must change lanes. Exception #4 is the most-common exception; at about only 11′ of effective width, this condition is present on nearly all “busy” roads throughout Tempe (typical example; Broadway Road near Elm). See where-to-ride-on-the-road for a compendium of expert advice on the subject of narrow lanes. Refer to graphic, lanes 12′ and less are “not shareable (side-by-side) with any car…”

As a bit of cautionary tale; the city of Flagstaff in 2012 tampered with the AFRAP law; omitting the word ‘safely’ from the narrow lane exception. No one there has ever answered or explained why this was done; nor have they made any attempt to correct of fix it. The result is cyclists in narrow lanes in Flagstaff are in a worse position.

Issue #4 Not an issue; was: What happened to Class 3 ebikes?

These were defined in Tempe’s ebike ordinance; referred to as “light motorized vehicle”. As it is, the ebike definition only covers what are known as class 1 or class 2 ebikes (top assisted speed of 20mph). This section alludes to class 3’s which, remember, in Tempe are NOT ebikes by Tempe’s definition:

SEC. 19-214(E) WHEN TRAVELING IN A BICYCLE LANE OR STREET, AN ELECTRIC BICYCLE OR NON-HUMAN POWERED VEHICLE MAY NOT BE OPERATED AT SPEEDS IN EXCESS OF TWENTY-EIGHT (28) MILES PER HOUR, OR THE SPEED LIMIT, WHICHEVER IS LOWER; OR AT SPEEDS THAT ARE DEEMED REASONABLE AND PRUDENT.

There’s also one hanging reference to the phrase LMV; it’s in the def’n of NHPV.

ANSWER: an ebike faster than 20mph, e.g. a class 3 per ARS definitions, would fall under the umbrella of NHPV. I guess that’s okay.(?) Although it still seems odd to me the def’n for LMV that is in the existing Chapter 7 has simply disappeared; it used to read:

Light motorized vehicle : All gas or electric powered, two- or three-wheeled vehicles with a gross weight of less than one hundred twenty (120) pounds and a maximum speed of thirty-five (35) miles per hour that are not an electric bicycle or an electric personal assistance mobility device.

Issue #5 Opinion: Speedo requiment?

This might be a problem/issue; i’m not sure if Class 1/2 ebikes typically have a speedometer(?). If the top (assisted) speed is only 20, is that really an issue?

(B) ALL ELECTRIC BICYCLES MUST BE EQUIPPED WITH A SPEEDOMETER THAT DISPLAYS THE SPEED THE ELECTRIC BICYCLE IS TRAVELING IN MILES PER HOUR.

Also note because of the Tempe-specific definitions, ebikes faster than 20, e.g. Class 3 ebikes as defined in ARS would not require a speedo — I need to doublecheck the ARS for ebikes, do they require a speedo? If so this section would be moot (and should be deleted).

Issue #6 Opinion: Helmet requirement?

I don’t have any problem with helmets, in fact I often wear one while bicyclist. However, I am generally against compulsory helmet requirements; for a variety of reasons (e.g. they are known to decrease participation rates; claims of protection are often over-stated), but as a practical matter they are rarely enforced, so that when they are it’s hard to avoid the appearance of selective enforcement. Parents can enforce it themselves as they see fit. And, again, as a practical matter I have no idea how age-based laws are able to be enforced; will police be doing sweeps through neighborhoods looking for kids riding around their driveways?

Before enacting, I would want to know more about how the rule, which exists in only a few jurisdictions in Arizona, is handled, and how it’s working in reality. It would also be enlightening to have a look at reported crashes; for example, there were a grand total of 6 crashes involving a bicyclist below age 18 in 9 years that resulted in an incapacitating injury (and thankfully zero fatalities); and at least one of these was known to be wearing a helmet (accurate reporting of bicyclist helmet usage is, oddly, not required/undefined on AZ crash forms). That’s 6 out of 113 KSI (killed or seriously injured) over that time period.

SEC. 19-215 – HELMET USE REQUIREMENT.
NO PERSON UNDER EIGHTEEN (18) YEARS OF AGE SHALL OPERATE A BICYCLE, ELECTRIC BICYCLE OR NON-HUMAN POWERED VEHICLE OR BE A PASSENGER ON AN ELECTRIC BICYCLE, UNLESS THE PERSON IS WEARING A PROPERLY FITTED AND FASTENED BICYCLE HELMET…

If it’s going to go into the final ordinance, at least make a disclaimer to the effect that a violation of this section cannot be used to establish liability. (so that when e.g. a driver runs a red light and hits an unhelmeted rider, the driver cannot claim it’s the rider’s fault).

Issue #7 Mandatory Bike Lane Rule(?) / Sidewalk Prohibitions

This appears to be a miscommunication/misunderstanding but it’s important enough to highlight. Mandatory facilities use laws are always bad for bicyclists (here’s a summary of why).  Arizona does not have any mandatory facilities use law (AZ did have a mandatory sidepath law which was repealed in 1989).

Anyway, I had heard from staff something to the effect that “… in some cases (bikes, ebikes, escooters) would be required to use a bike lane”. As things turn out, what they seem to have meant was more like: in some cases, sidewalk use would be prohibited; note the distinction between allowing sidewalk use versus a mandatory BL rule. Here’s the section they referred me to:

SEC. 19-212.(E) A PERSON MAY OPERATE A BICYLE, ELECTRIC BICYCLE, OR NON-HUMAN POWERED VEHICLE UPON A SIDEWALK WHERE NO BIKE LANE IS AVAILABLE AND WHERE THE SPEED LIMIT IS 25 MILES PER HOUR OR HIGHER.

note there’s a misspelling BICYLE. I’m still having a hard time processing this subsection but it’s NOT a mandatory BL law.

Where did they come up with 25 or higher? As far as I know, there are NO posted speed limits below 25 anywhere in Tempe (other than active school zones for elementary/middle school). And why is this section needed because I don’t see any other sidewalk prohibitions, except for the as-posted provision in 19-212(A)?

I get the impression that at one time the working group had imagined they would put into the code something to the effect a blanket sidewalk prohibition whenever there was a BL present — but I don’t see that in the proposal(?did I miss it?).

Here is what I *think* they meant to say; i made it green text to emphasize this isn’t in the proposal, it’s what I think was meant:

A PERSON SHALL NOT OPERATE A BICYCLE, ELECTRIC BICYCLE, OR NON-HUMAN POWERED VEHICLE UPON A SIDEWALK WHERE A BIKE LANE IS AVAILABLE AND WHERE THE SPEED LIMIT IS 25 MILES PER HOUR OR LOWER.

I’m also not sure as a practical matter why the speed limit thing is there; 25mph roads almost never have bike lanes;
I see that this section did not include HPVs (i discuss more immediately below)…

Also, more generally throughout that section 19-212…
I’m not sure it’s consistent with the many devices from sub-sec to sub-sec, and i’m not sure there was a method of which types of devices were included, in other words i’m worried about unintended side-effects —
e.g. (A) applies to bikes, ebikes, HPVs and NHPVs
This would mean that, if i understand the category correctly, that a kid’s wagon, as an HPV would be prohibited where signed (e.g. along mill, or perhaps under the RR tracks at mcclintock) — is that what was intended?

Issue #8 There should not be a special ebike speed limit

Maybe there’s something I’m not understanding about the wording of the last bit, after the semi-colon… should say faster than R&P perhaps? [this was addressed in the 6/6 version by removing that clause entirely; represented below as struck through. The entire section  should still not exist, for reasons stated below]

eBicyclists are already limited by speed laws for drivers of vehicles; including going no faster than is reasonable and prudent. Class 3 ebike motors are designed to stop assisting at 28mph but are legal to ride on all Tempe streets including those without bike lanes and including those with speed limits above (well above, unfortunately) 28mph. Bicycle riders, including ebike riders, ride as fast as they are reasonably able to avoid impeding traffic on roads with lanes that are too narrow to share side-by-side, in the case of ebikes this is through a combination of motor-assist to which they add their human-power; this code would not allow them to.

SEC. 19-214(E) WHEN TRAVELING IN A BICYCLE LANE OR STREET, AN ELECTRIC BICYCLE OR NON-HUMAN POWERED VEHICLE MAY NOT BE OPERATED AT SPEEDS IN EXCESS OF TWENTY-EIGHT (28) MILES PER HOUR, OR THE SPEED LIMIT, WHICHEVER IS LOWER; OR AT SPEEDS THAT ARE DEEMED REASONABLE AND PRUDENT.

 

I’m removing this one (about applicability) as I think I mis-read both of these sections — on 2nd look 19-183 only says the rules apply to all roads/sidewalks, etc. And 19-184 simply binds ebikes and NHPVs to bicycle rules (not vehicle rules):

Issue #9 The NHPV Applicability Section is contradictory regarding sidewalk use

In state law, bicyclists are not prohibited from riding on sidewalks; even though drivers of vehicles are, of course, prohibited from driving along a sidewalk (§28-904). The idea being that localities are free to regulate sidewalk cycling as they see fit. This is due to the wording of the state’s applicability statue, in particular the phrase “on a roadway or on a shoulder adjoining a roadway”:

28-812A. Applicability of traffic laws to bicycle riders;
A person riding a bicycle on a roadway or on a shoulder adjoining a roadway is granted all of the rights and is subject to all of the duties applicable to the driver of a vehicle…

SEC. 19-184. – APPLICABILITY OF TRAFFIC LAWS.
(A) IN THE CITY OF TEMPE, A PERSON RIDING A NON-HUMAN POWERED VEHICLE IS GRANTED ALL OF THE RIGHTS AND IS SUBJECT TO ALL OF THE DUTIES APPLICABLE TO A BICYCLE RIDER UNDER STATE AND LOCAL LAW…

Read together, this could mean bicyclists riding on the sidewalk in Tempe are in violation of 28-904. Although I find this a rather tortured interpretation; there is a Court of Appeals decision State v. Baggett which implies this is the case regarding a similarly worded Phoenix ordinance.

It should be corrected to reflect what seem to me to be the obvious intent to allow NHPVs to use sidewalks (except as specifically prohibited; e.g. where signed, “fast” roads w/o BLs).

Placeholder: I am slightly worried that sec 19-183 could be problematical for similar reasons.

The one bright spot

I should point out the proposal does address one problem in the existing code:

Sec. 7-52. Riding on sidewalks or bicycle lanes.

(d) Any person riding a bicycle on a bikeway, sidewalk or bicycle path that is about to enter or cross a roadway shall yield the right-of-way to all traffic on such roadway.

The equivalent replacement section, 19-212(D) removes the ambiguity (see this letter for details of why this is ambiguous) for cyclists using the roadway by deleting the word ‘bikeway’ and changing ‘bicycle path’ to ‘shared use path’.

I still think the proposed new section is inequitable to sidewalk-cyclists — see Issue #1, above.

Minor issues

#1 – A couple of places, the new language says “MPH”, and everywhere else it says “miles per hour”. Pick one and stick with it.

#2- sidewalk is defined but I see no definition of ‘shared use path’, ‘shared path’, ‘multi-use path’ or ‘bicycle path’. Worse yet, these four all seem to used indiscriminately / interchangeably. If they’re really the same pick one (or two or whatever you need), define it, and be consistent. Here’s a handy list of definitions from other documented sources.

#3 – Are gasoline powered things (motorized bicycles, “go-peds”) adequately covered or addressed? E.g. I see this one:

(G) IT SHALL BE UNLAWFUL TO OPERATE A NON-HUMAN POWERED VEHICLE THAT USES GAS-POWER ON ANY TRAILS.

But that means they are allowed on paths? Is that ok?

#4 Typo-s

There are several typos in both the May proposal and the 6/6 version…. e.g. ‘VEHCLE’ and ‘BICYLE’

Dead or seemingly non-issues that I had at one time worried about; and a catch-all of random ideas or questions in my mind

Are HPVs (other than bikes; e.g. strollers) banned from some/any sidewalks?

This is apparently not a problem/true; as HPVs are not granted the R&D of bicyclists, correct?

I don’t have this clear in my mind, but if an HPV has to follow bicycle rules; that would mean that, e.g. strollers, wagons, kid’s things with wheels wouldn’t be permitted on sidewalks where bicycles are banned (e.g. Mill Ave, under RR tracks on McClintock.

Def’n of bicycle

The existing def’n was simply moved from existing chapter 7. Keep in mind that Tempe’s def’n of bicycle, unlike ARS, does not include any wheel size; and also allows for more than three wheels. The ARS at 16″ is a way, albeit imperfect, to exclude small children’s bikes and trikes from rules for bicycles. Whether that’s good or bad; Tempe does not have this escape-hatch. Here’s Tempe’s def’n:

BICYCLE MEANS A DEVICE PROPELLED BY HUMAN POWER WHICH ANY PERSON MAY RIDE, HAVING TWO (2) TANDEM WHEELS OR HAVING THREE (3) OR MORE WHEELS IN CONTACT WITH THE GROUND.

Def’n of Electric Scooter

Tempe includes only one, ARS (as passed 4/18) has two: one limited to 10mph, and the other limited to 20mph (the single Tempe def’n is 20). The Tempe def’n speaks of “under ARS (def’n of vehicle reference) a scooter qualifies as a vehicle”. This isn’t true anymore in the bill passed 4/18.  the 6/6 version added the definitions of escooters that conform to what was done in ARS.

Driving Vehicles across Sidewalks

Sec. 19-56: I surmise that section is there (it was carried over from Chapter 7) to explicitly grant the right-of-way on sidewalks, at driveways (as distinct from crosswalks), to not just pedestrians but also to “bikes, ebikes, HPVs, NHPVs… etc”.

Kid’s Play Vehicles?

There do exist these very low-speed  (4mph?) electric powered miniature vehicles for kids. It seems like they would fall under the category of NHPV. Is that ok? Are there any unexpected side-effects? I think that means they are banned from sidewalks where bikes are banned; is that a problem?

Slowing to 5mph?

SEC 19-213. requires and ebiker or NHPV to slow to 5mph when passing on a MUP. 5mph is probably unrealistically too slow.

Motorized Play Vehicles? Def’n of ‘Owner’ and ‘Operator’ is wrong?

There are a couple of hanging references to Motorized Play Vehicle Def’n of ‘Owner’ and ‘Operator’; the definition (of MPV) has been removed so those references should also be removed, it seems to me. In fact, the def’n of Def’n of ‘Owner’ and ‘Operator’ seem wrong in that they are limited to referring to the owner of an MPV when it seems to used far more generally.

Placeholder for Vehicle vs. Device Definitional Problems

In ARS, many devices are specifically excluded from the definition of vehicle; notably bicycles, ebikes and escooters, and also anything “human powered”, e.g. skateboards; and even . All these things are not vehicles.

Tempe in this ordinance has come up with the terms HPV and NHPV despite the fact that in ARS, many or all of these things are not vehicles per ARS.

It would be cleaner if Tempe code referred to these things, as in ARS, as devices, and not as vehicles. Perhaps this is as simple as mass change HPV -> HPD, and NHPV -> NHPD

In particular, the def’n of electric bicycle calls it a ‘vehicle’, this is improper.

Among other reasons, personal injury attorneys tell me blurring the definitions of vehicle is a problem for bicyclists (and users of other types of devices described) when trying to recover from negligent motorists

Suggested wording for 19-214H to be consistent with ARS (#suggested214H)

The ordinance, for reasons detailed above shouldn’t appear. If it must, then if the intent is truly and only to mimic ARS, the best approach to avoid unwanted and damaging side-effects would be to use the actual ARS 28-815A language and not use the suspect Tempe language that used to apply to motorized play vehicles (and had never applied to bicycles, this is new code); I believe it would look like below (note renamed NHPV to NHPD):

28-815A. 19-214H. A person riding a bicycle , ELECTRIC BICYCLE, OR NON- HUMAN POWERED DEVICE on a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride as close as practicable to the right-hand curb or edge of the roadway, except under any of the following situations:

1. If overtaking and passing another bicycle , ELECTRIC BICYCLE, OR NON- HUMAN POWERED DEVICE or vehicle proceeding in the same direction.

2. If preparing for a left turn at an intersection or into a private road or driveway.

3. If reasonably necessary to avoid conditions, including fixed or moving objects, parked or moving vehicles, bicycles, pedestrians, animals or surface hazards.

4. If the lane in which the person is operating the bicycle is too narrow for a THE bicycle , ELECTRIC BICYCLE, OR NON- HUMAN POWERED DEVICE and a vehicle to travel safely side by side within the lane.

This avoids the discrepancies between ARS and Tempe language; as outlined above —  normal vs. lawful; missing ‘any’; missing ‘within the lane’; etc.

List of Changes From City Staff (#staff)

Explanation of changes made between 1st Read and 2nd Read 6-19-19

  • Removed hyphens from all “non-human-powered and human-powered”
  • Capitalized Director’s title on page 3 as it is brand new language
  • Made definition of motorized skateboard consistent with ARS changes
  • Added “electric miniature scooter” consistent with new definition in ARS Chapter 28
  • Section 19-151 clarified language and included exception for bicycles
  • Section 19-212(D) included “greater than” language
  • 19-214(I) 1. Included preserve in accordance with City code Chapter 23 Article V Section 23-110

Changes Made before 3rd and Final Read 7-31-19

  • Removed light motorized vehicle from definitions
  • Removed references to motorized play vehicle
  • Section 19-151 – Crossing a roadway and prohibited operations in subsection D changed the word from DIFFICULT to IMPOSSIBLE reading (my emphasis added):

NO PEDESTRIAN OR HUMAN POWERED VEHICLE OPERATOR SHALL SUDDENLY LEAVE A CURB OR OTHER PLACE OF SAFETY AND WALK, RUN, OR RIDE INTO THE PATH OF A VEHICLE WHICH IS SUFFICIENTLY CLOSE THAT IT IS IMPOSSIBLE FOR THE OPERATOR OF THE VEHICLE TO YIELD.

  • Section 19-214 (H) we changed the word LAWFUL to NORMAL reading:

A PERSON OPERATING A BICYCLE, ELECTRIC BICYCLE, OR NON HUMAN POWERED VEHICLE ON A ROADWAY AT LESS THAN THE NORMAL SPEED OF TRAFFIC…

Changes made at 7/31/19 Council Meeting

  • Add to SEC. 19-212. – RIDING ON SIDEWALKS OR BICYCLE LANE letter (F) that states: :

WHEN ACCOMPANIED BY A PARENT OR GUARDIAN, OR WITH THE CONSENT OF A PARENT OR GUARDIAN, MINORS MAY OPERATE HUMAN POWERED VEHICLES AND BICYCLES ON A SIDEWALK AT ALL TIMES.

  • Add to SEC 19-212RIDING ON SIDEWALKS OR BICYCLE LANES letter (G) that states:

WHEN ACCOMPANIED BY A PARENT OR GUARDIAN, OR WITH THE CONSENT OF A PARENT OR GUARDIAN, MINORS WHO ARE SIXTEEN YEARS OF AGE OR OLDER MAY OPERATE AN ELECTRIC PERSONAL ASSISTIVE MOBILITY DEVICE ON A SIDEWALK.

  • Add to SEC 19-213. – NON HUMAN POWERED VEHICLES MUST YIELD RIGHT-OF-WAY letter (C) that states:

ON A SIDEWALK, A PERSON OPERATING A NON-HUMAN POWERED VEHICLE MUST YIELD THE RIGHT OF WAY TO ANY PEDESTRIAN, HUMAN POWERED VEHICLE, OR ELECTRIC PERSONAL ASSISTIVE MOBILITY DEVICE.

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