The Flagstaff Chronicles

16 thoughts on “The Flagstaff Chronicles”

1. Below is an excerpt from the City of Flagstaff BAC Draft Meeting minutes from Feb 3, 2011 meeting (my emphasis added, and explanatory addition made in square brackets[]):
   1. Enforcement of Traffic Laws for Bicyclists — A cyclist reported that he has received six citations to date for violations of ARS 28-815(a), which requires bicyclists to ride to the right unless one of several exceptions are met. He said that some of the citations have been dismissed by the court. Several of the citations have been along the same stretch of road (Route 66 near Switzer Canyon Drive), and several have been issued by the same officer. He said there is a dichotomy between the law and how the law is enforced, and asked the Committee to consider an education program for law enforcement personnel.
   There was a brief discussion about ARS 28-815(a), including a discussion about court cases and federal guidelines for when taking the lane is warranted because it is too narrow to travel side-by-side with motor vehicles.
   The Committee asked the cyclist about whether he rode in the shoulder that was striped for bikes along both sides of Route 66, and whether he used the FUTS [a bi-directional, seperated sidepath, multi-use trail] trail along the south side. The cylist responded that the shoulder appears to be too narrow to meet minimum standards, and that an ADOT report [see this comment] found numerous crashes with motor vehicles along the path.
   The Committee discussed circumstances when a cyclist might be better served not take the lane, including on high-speed, high-volume roadways, and when it serves to antagonize motorists.
   …
   Ken Lane, Chair ;Jan Blackman; Dave Blanchard; Richard Hall; Kevin Parkes; Jodi Norris (absent)
   The following City staff was present: Martin Ince, Multi-Modal Planner (928) 226-4850 David Needham, Police Department

2. Excerpts from case TR-2011000921 transcript:
   The prosecutor is under clear delusions of motorist-superiority complex…

   The transcripts are riddled with such statements by the City Attorney (Mr. Brown), e.g. this about a lane which was stipulated by both sides to be 10 to 11 feet wide:

   Mr. Brown: …the State’s position would be why is in the center of the two lane instead of on the far right side as the law requires? (page 56)

   The ramifications of these rhetorical questions in closing is mind blowing to Mr. Brown!

   Mr. Brown: I mean, if Milton Road, which is by the Officer’s estimation 10 to 11 feet, is not wide enough, based upon, again, (the cyclist’s) estimation, then is there and keep in mind, that is one of the major thoroughfares through town with — the marked lanes, four — two lanes in every direction from the center turn lane — what roadway in town is going to be sufficient width in his estimation? State submits there might not be one. In which case, if we follow that a line of questioning, what’s to stop (a cyclist) from riding in the middle (of a) lane on any (indiscernible) in town whatsoever? …
   The State submits that — we have the existence of 28-815A which essentially tells bicycles stay out of the roadway and don’t get in the way of motor vehicles

   The 701E charge is finally admitted by City Prosecutor to be non-applicable to bicyclist; halleluja:

   (Q) So, okay. Did you observe that I was wearing a seatbelt on my bicycle?
   MR BROWN: Objection. Relevancy.
   MR PRYZBY: I intend to pursue the distinguishing factor between a vehicle and a motor vehicle with the requirements thereon.
   THE COURT: Is there a legal difference in this case that you would assert between a motor vehicle and a bicycle?
   MR BROWN: technically speaking, your honor, 28 – 101 definition of vehicle excludes vehicles that are human powered. But 28 dash 12 states there person riding a bicycle has all the rights and subject to all duties applicable to a driver of the vehicle, subject two chapters 3, 4 & 5 of total 28 except those that have no application. The defendant in this case was cited under 28 – 701E which states a person shall not be on a motor vehicle speed is less than the reasonable and prudent of existing conditions.
   THE COURT: Does the state think that the bicycles a motor vehicle?
   MR BROWN: No your honor.
   THE COURT: Do you believe a bicycle is a motor vehicle?
   MR PRYZBY: No your honor.
   THE COURT: Okay. The court takes judicial notice that a bicycle is not a motor vehicle and that way you can move on. (p. 17)…
   MR. BROWN: For Count B, 28-701E, (indiscernible) read the statute, State would have to agree that that statute seems to apply strictly to motor vehicles, since it’s not a moped or anything like that, it’s strictly a bicycle, the statue would not be applicable to this — event. (p.39)

   What about the case months ago in June 2010 where the city attorney prosecuted and lost on the same statute, didn’t they read the statute then?

   This odd claim by the city attorney that the cyclist should have used the crosswalk to change lanes:

   MR. BROWN: Ok, let’s say you are the first or second vehicle if you’re — a bike at the intersection. The light’s red. Traffic’s stopped in this direction. Traffic’s moving this direction. What would be to stop you from coming across this way, going in the crosswalk and (indiscernible) curb right there. And there — would be no obstruction at that point.
   THE COURT: Would that be a sate maneuver? What if it turned green while you were doing that and then cars didn’t see you, went into you?… (p. 57)

   Officer Sanchez’s direct testimony:

   “Arizona State Law requires that if you’re on a pedicycle and there’s no bicycle lane, there’s only a shoulder lane, then you are to ride to the furthest right side of the roadway not obscuring traffic”

   (i.e. he is unaware or denies that 10 to 11 feet is too narrow to share).
   He also testified that the area was posted for a minimum 30mph speed (obviously incorrect — he meant, and he was given the opportunity to correct himself, but did not that the posted maximum speed limit was 30. Does an LEO really not understand this is a posted maximum?) he refers repeatedly to the a right and required speed: “You (the cyclist) weren’t allowing traffic to travel the right speed, the required speed”.

3. Why does the Flagstaff City Attorney’s office take such an unusual amount of interest in these cases? It is exceedingly rare for a City Attorney to litigate a civil traffic ticket — yet they have. Again and Again. Why? See rule 12.
   Why won’t the City Attorney allow reference material to be introduced into evidence? E.g. Arizona Street Smarts? (this is published by ADOT for cryin’ out loud). See Rule 17.

   Excerpted Arizona Rules of Procedure in Civil Traffic Violation Cases:
   “Rule 12 . Representation by the State The State need not be represented by counsel…”

   “Rule 17. Rules of Evidence and Burden of Proof (a) The Arizona Rules of Evidence SHALL NOT APPLY in civil traffic cases. Evidence may be admitted subject to a determination that the evidence has some probative value to a fact at issue.”

4. From CR-2011000581 trial transcript:

   Witness Walter Link, an ADOT engineer quotes authoritatively and accurately from memory from the AASHTO Guide to the Development of Bicycle Facilites:
   “ASSHTO (sic) provides for a curbed urban area, a requirement — a minimum requirement of five feet from the — center of the edge stripe to the face of the curb. Of that five feet, three feet 3 has to be a ride-able, relatively reasonably smooth surface”

   However, disappointingly, he could not answer this question put forward by the defendant:
   Q: …do you happen to remember the ASSHTO guidelines for minable — minimum shareable lane widths…?
   A: I can’t — I do not recall that specific minimum shared width

   It’s pretty simple. The answer is 14 feet. He elsewhere testified the lane there is only 11 feet.

   much was made of the supposedly 3′ of consistent shoulder; however Link said “I believe there is less than three foot of asphalt shoulder available.” (in some areas).

   And so we get to the crux of the matter, from Mr. Brown’s closing argument (p. 66) “the three foot wide asphalt shoulder and can you see — actually it’s a bike path separate from the roadway on the south side of the roadway”…. if only the cyclist would use the shoulder, or the seperated sidepath!
   “…And then we see (the cyclist), by his own admission, smack dead center in the lane with this car — with this truck here behind him probably not knowing what to do in the circumstance” Imagine! not knowing what to do?

   In Flagstaff Muni Court Magistrate Sandra Wagner’s ruling we see that the seperated side path weighs HEAVILY:
   “There was evidence that there was a bike path on the south side of that road where you could have safely ridden, operated your bicycle”…”And you continued on with that dangerous behavior, endangering not only yourself but other people on that roadway that have — that could have been involved in accidents by trying to avoid hitting you. If there’s no bike path, that would be one thing, but even then you should have been off when the speed limit is so much faster than what you were able to ride… There was a bike a path and for all of those reasons, that is why I did find that you are guilty.” (of criminal obstruction of a public highway).

   Can you say: legislating from the bench? (the mandatory bike path law was repealed some 22 years ago).
   ….
   It would seem as though this is analogous to the Reed Bates case in TX… JF writes:
   As for the Bates affair, Bates was prosecuted for operating within the law but outside what Texans, including, especially Texan police and prosecutors, thought that the law should require of cyclists. Being prevented by judges from prosecuting Bates for violating the FTR law, those persons prosecuted him for reckless driving, and won. However, there was no evidence at all that Bates was driving recklessly. Indeed, the only evidence presented was that from persons who were hindered, by Bates’s action, from their pursuit of driving recklessly.
   Here’s a thread on BicycleDriving (login required), pointing out some CA case law involving motorist negligence when striking bicyclists using the right-hand lane on a 4 lane roadway: Fraser v. Stellinger, 52 Cal.App.2d 564 [126 P.2d 653] Summarized in another case, Stickel v. Durfee as follows: “The truck driver testified that he was then “traveling in about the middle of the slow lane.” That was the extreme outside lane where the plaintiff was riding his bicycle near the outer edge. The truck driver, traveling 35 or 40 miles per hour, clearly intended to pass the bicycle. He therefore belonged in the adjacent fast traffic lane. If the truck had been in the unobstructed lane where it belonged the accident could not have happened.”

   (August 2011) Eli Damon harassment lawsuit in federal court, story. copy of the lawsuit.

5. Once again, a statutorily lawful act has been ruled a criminal act. All hail the mighty motor-car and the culture of speed!

6. Too bad the judge didn’t read this. It’s been cited before on this blog.

   http://www.richardcmoeur.com/pres/b40flag.ppt

   (p.s. in case that link ever goes dead, it is mirrored here and also see this comment from Richard about the safety there)

7. I was stopped 1/4 mile from work, en route to deliver a letter to NAU maintenance and risk management departments. The two city PD were
   Young and Monteverde in car 2202 roughly 1:35pm.

   I had been straddling the lane line on rt 66, and at one point moved laterally to avoid a poor surface (edge).

   They told me that a vehicle had almost hit me (I don’t remember anything that was even slightly resembled this). I asked if they intended to persue that driver. They said that I must ride in the
   bike lane. I informed them that route 66 has nothing marked as a bicycle lane, and they “advised” me that I must ride in “my lane”, further advising me that I “should” be using the path/trail/futs on
   the south side of the road. I asked them why I “should” and one (Monteverde) said to the other “you know what, just give him his ID back”. I believe he (Young) had begun writing me a warning.

   I’m undecided if I want to complain about that, as they were legitimately concerned, it’s true that straddling a lane line is not very satisfactory, and they probably didn’t consider that my lateral
   movement was deliberate and not just generic instability. However, they wanted to give *me* a warning, didn’t know what a bicycle lane
   was, and thought that bicyclists “ought” to use bicycle paths. uncondtionally.

8. Why is/was ‘Safely’ omitted from new city code?

   The new code copies ARS 28-815A 1 through 4 verbatim, except for some reason (typo?) the word safely was omitted. also see http://blog.cazbike.org/2012/01/flagstaff-modernizes-their-city-bike.html According to the summary document prepared by Martin Ince, this section is annotated (my emphasis):”language matches ARS 28-815″

   Here are the two sections, first the long-existing ARS 28-815A; and the new (Dec 2011) Flagstaff code Section 9-05-001-005A. Not the omission of the word “safely” in subsection 4 of the new city code.

   §28-815. Riding on roadways and bicycle paths; prohibition of motor vehicle traffic on bike paths

   A. A person riding a bicycle 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 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 bicycle and a vehicle to travel safely side by side within the lane.
   …
   Section 9-05-001-0006 Riding on Roadways and Bicycle Lanes
   A. A person riding a bicycle on the 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 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, snow and ice, or surface hazards.
   4. If the lane in which the person is operating the bicycle is too narrow for a bicycle and a vehicle to travel side by side within the lane.
   5. When proceeding straight, through an area where a right-turn is permitted, in order to avoid conflicts with right-turning vehicles.
   B. When parking is allowed along the roadway, then the “right side of the roadway” shall be deemed to be to the left of any parked vehicles or parking lane, including the area occupied by open car doors, or to the right of any parked vehicles or parking lane on the left side of
   one-way streets.
   C. Persons riding bicycles upon a roadway shall not ride more than two (2) abreast except on paths or parts of roadways set aside for the exclusive use of bicycles.

   This message was sent, and a copy sent via USPS to Mayor Nabours; there was never any reply:
   —– Forwarded Message —–
   From: CAzBike Webmaster
   To: “jnabours@flagstaffaz.gov”
   Cc: “council@flagstaffaz.gov” ; “voicesofmany@aol.com” ; Martin Ince
   Sent: Monday, August 20, 2012 12:16 PM
   Subject: New bicycle ordinance
   The Honorable Jerry Nabours
   City of Flagstaff
   211 West Aspen Avenue
   Flagstaff, Arizona 86001
   CC: Council Members, Vice Mayor, and Martin Ince.
   Mr. Nabours,
   The Coalition would like to again extend thanks and congratulations on updating your City’s bicycling ordinances this past December.
   However, it has come to our attention that there seems to be a typographical or transcription error in your new city code Section 9-05-001-0005, part A4 (which is otherwise a verbatim copy of ARS 28-815A4):
   ARS 28-815A4.
   If the lane in which the person is operating the bicycle is too narrow for a bicycle and a vehicle to travel safely side by side within the lane.
   Flasgstaff Section 9-05-001-0006 A.4.
   If the lane in which the person is operating the bicycle is too narrow for a bicycle and a vehicle to travel side by side within the lane.
   The section read at face value indicates that cyclists in Flagstaff may not consider safety when deciding whether or not a lane is too narrow to share.
   The Coalition would like to see ‘safely’ restored as soon as possible, which would then bring your code into harmony with Arizona Revised Statutes.
   Please advise; feel free to contact us with regard to this or any other matter affecting bicyclists.
   Regards,
   Ed Beighe
   cazbike@cazbike.org
   Board of Directors,
   Coalition of Arizona Bicyclists

9. during flagstaff’s Dec 2011 ordinance modernization, somehow the word ‘safely’ got dropped:
   http://blog.cazbike.org/2012/01/flagstaff-modernizes-their-city-bike.html

10. This was unearthed from a very old Flag BAC meeting minutes July 2007 — This doesn’t sound right; the bit about how a city code “takes precedence” over state statute “in case of a conflict”. Um, I don’t think so. A better way to say it is if a city code is in conflict with state statute, then that city code is null, void, and unenforceable. 28-626B “A local authority…Shall not enact or enforce an ordinance or regulation in conflict with this chapter…”.
    “Messrs. Ince and Craig answered that City Code takes precedence on City streets, Arizona Revised Statute (ARS) takes precedence on State highways, and if ARS addresses a situation that City Code does not, then ARS is applicable even on City streets”

    I also disagree with the BAC’s logic of duplicating state statutes in city codes (see comment directly above this one) — it can only lead to shenanigans.

    Here is the full item:
    Revisions to City Code Regarding Bicycles
    Martin Ince summarized a staff report on revisions to City Code that had been
    provided to the BAC in their agenda packet.
    Flagstaff Bicycle Advisory Committee | 5 July 2007 | Page 9 of 35Page 3 of 4
    There was a question about the applicability of City Code and state statute, and which prevails when there is a conflict. Messrs. Ince and Craig answered that City Code takes precedence on City streets, Arizona Revised Statute (ARS) takes precedence on State highways, and if ARS addresses a situation that City Code does not, then ARS is applicable even on City streets.
    Mr. Welch stated that he has been involved in several court cases concerning bicyclists, and that the judges rely heavily on state law.
    Ms. Grimes stated that most of the dangerous roads for bicyclists are State highways, and asked about the time frame for the planned transfer of control of these roads from the State to the City. There was a brief discussion about the process and time frame for turning State roads over to the City.
    Regarding bicyclists in crosswalks, Mr. Craig suggested that the status of bicyclists as vehicles or pedestrians be clearly defined in the code. Mr. Blanchard said Boulder uses warning signs for motorists where trails cross streets, and Tom Bida said that these may be used in heavy traffic situations. Mr. Welch said that the code and signing would be used to determine fault in accidents.
    Regarding a requirement that bicyclists travel no faster than pedestrians through crosswalks, Mr. Blanchard thought it would be difficult to enforce and determine whether or not a bicycle was speeding. Mr. Bida said that crosswalk safety could be improved by an audible signal.
    Kevin Parkes suggested separating pedestrian and bicycle traffic in the crosswalk,
    similar to divided pathways like the one though the NAU campus. Mr. Craig responded that there was probably not sufficient width in a typical crosswalk.
    A question was raised about motorized vehicles and how they should be treated in City Code.
    There was a discussion about whether or not it was necessary or desirable to include provisions in City Code when it is already covered in ARS. Following discussion, there was a consensus that there was some benefit in including provisions in City Code even when included in ARS, primarily because it would help educate bicyclists about rules of the road and it would guard against future changes in ARS that the City has no control over.
    Ms. Grimes asked about the applicability of Code to unicycles, adult tricycles, and other pedal vehicles. After discussion it was agreed that definitions are an important part of the new Code.
    Discussion of this item was tabled to the July meeting

11. Judge Lodge wrote this appeal decision
    http://azbikelaw.org/cases/CV2011-0951_jan6-2012_state-v-pryzby_order.pdf
    It is very boilerplate, and shows no signs that he understood, or even read any of the facts in the present case; simply concluding “This Court finds no legal error”.

    He was forced off the bench in mid-Dec 2012 due to some personal problems:
    http://azdailysun.com/news/local/crime-and-courts/county-judge-lodge-reassigned-after-dui-arrest/article_7d252c65-e781-599c-b9ff-8dae0b60b396.html

12. On 2013-08-13, I was given a “verbal warning” for crossing midblock, not between adjacent, signalled intersections. My dog pooped on the sidewalk and I crossed San Francisco St south of Butler to the east to throw away the bag. PEDRO SANCHEZ III stopped me, claiming that I violated some (unidentified) law requiring that I use a crosswalk. That could either be a misapplication of ARS 28-793(C), or 28-646(A)(2). The latter is arguably valid. I was not at the intersection, but the statute applies whenever crossing “in the direction of the signal”. I was denied a copy of the written warning, and not allowed to read its content.

13. Right of Speed: verbatim trial testimony of a police officer — could a professional police officer really not understand the difference between the terms maximum and minimum? or was he lying, or otherwise misrepresenting the truth? You be the judge.
    This road has a posted (maximum) speed limit of 30mph, and of course has no posted minimum…

    ‘Q’ is the defendant representing himself, ‘A’ is a Flagstaff, AZ PD officer
    Q Can you tell me if there is a minimum speed limit established on this section of Milton Road as —
    A Speed limit says 30.
    Q Let me start again. Was the procedure followed to establish a minimum speed limit on that section of Milton Road?
    A I don’t understand what you’re saying.
    Q A minimum speed limit –was it posted? Established? Thirty miles an hour? A minimum speed limit?
    A That is the speed limit there. You’re on (indiscernible). You’re backing up traffic, then you’re not going reasonable and prudent. In which you were doing.
    Q (Indiscernible) minimum speed limit is posted?
    A It’s 30 miles an hour.
    A minimum speed limit?
    A I don’t know any —
    MR. BROWN [the city attorney]: Objection. Asked and answered.
    THE COURT: He answered it. You can argue whether you agree with it or don’t agree with it later, but he answered it.

    p.16 http://azbikelaw.org/cases/TR2011000921.pdf

    p.s. the actual speed limit rules, signs, etc are here

14. Is that a sidewalk or a bike path? The answer is, unfortunately, both, according to the City of Flagstaff (empahsis added):
    “FUTS (Flagstaff Urban Trail System) trails are included when they are paved, adjacent to a public street, and take the place of the sidewalk”
    The word ‘included’ in this context refers to counting as a length of sidewalk.
    City of Flagstaff Sidewalk Inventory Presentation (presented early 2014)

15. A [FUTS] trail may be substituted for a sidewalk or pedestrian way in cases where the Director determines the fuction is interchangable and equally accessible. (FCC 10-30-60-40; p153 of our 747 page zoning code)

16. Flagstaff is designated Silver level Bicycle Friendly Community.
    This rating by the LAB is heavily influenced by existence of designated, separated bicycle facilities; on the 2014 Score sheet (copy of which is here
    It says, under “10 building blocks of a BFC”…
    “Arterial Streets with Bike Lanes: Flagstaff 73%”
    Here is a roundup of Flagstaff Arterial streets:

    rt 66/89 (NO BL; drain grate hazard; poor maintenance)
    http://azbikelaw.org/contrib/data/grate-66-w-of-4th.jpg
    http://azbikelaw.org/contrib/data/grate-66.jpg
    http://azbikelaw.org/contrib/data/sweep-rt66.jpg

    butler(BL, not full distance, RTO hazard)
    http://azbikelaw.org/contrib/data/bl-park-butler2.jpg
    http://azbikelaw.org/contrib/data/bl-park-butler3.jpg
    http://azbikelaw.org/contrib/data/bl-snow-butler2.jpg
    http://azbikelaw.org/contrib/data/butler-at-4th.jpg

    milton(BL in progress?)

    4th(BL, drain grate hazard, RTO hazard)
    http://azbikelaw.org/contrib/data/grate-4th-st2.jpg
    http://azbikelaw.org/contrib/data/grate-4th-st3.jpg
    http://azbikelaw.org/contrib/data/grate-4th-st4.jpg
    http://azbikelaw.org/contrib/data/grate-4th-st5.jpg
    http://azbikelaw.org/contrib/data/grate-4th.jpg
    http://azbikelaw.org/contrib/data/4th-at-sparrow-north-after.jpg (the striping is resolved 18 months ago but there’s still an old R3-8 sign lingering around)

    cedar(arterial? with BL)
    http://azbikelaw.org/contrib/data/bl-4th-at-cedar.jpg (no BL
    downstream of intersection)

    Rt 66 has a 2-3 ft wide shoulder adjoining an adot sized gutter, and there’ll be quite a few people threatening to run over if you try to point it out.
    Rt 89 I believe has exactly one BL marking (in one direction) and perhaps one BL sign (in the other direction).