Monday, March 25, 2013

Chicago Bicyclists Have Options, Need Not Use Protected Bike Lanes

Cyclists are not required to ride in Chicago's protected bicycle lanes.  Wherever one exists, Kinzie Avenue for example, bicyclists will have the option to ride in it, or to use the main roadway along with other traffic.  

Clarification of the law came from Luann Hamilton and Gabe Klein, CDOT deputy commissioner and commissioner, respectively, at the Mayor's Bicycle Advisory Council meeting on March 13th.  Their statements on the matter were documented verbatim by journalist, John Greenfield, of Streetsblog Chicago, and came in response to questions raised on the subject at the meeting by me and fellow attorney, Jim Freeman.  At issue was whether Section 9-52-020 of Chicago's Municipal Code applies in the context of a protected bike lane.  That section states,
(d)  Whenever a usable path for bicycles has been provided adjacent to a roadway, bicycle riders shall use such path and shall not use the roadway.
Given the broad wording of the ordinance, I have been concerned that it could be applied to deny a bicyclist compensation where a crash occurred on a road with a protected lane that the cyclist chose not to use.  The ordinance, in my opinion, is vague on its face.  It does not define the term "usable path for bicycles".  Could it mean any track designed and built for cyclists that is physically separated from other traffic?  It did not seem a stretch to image a defense attorney, or judge, interpreting a bike lane, like the one on Kinzie separated from other traffic by bollards and parked cars, to fit within the definition of "a usable path."  Thankfully, CDOT has offered its interpretation of the ordinance.  Here's how the discussion went as recorded by Streetsblog:

Jim Freeman: So Chicago’s got a statute that says if there’s an adjacent bike path, bicyclists have to use the path and not the street. Is it the city’s position that that applies to protected bike lanes?

Luann Hamilton: No, it doesn’t. The ordinance applies to the Lakefront Trail designation at the South Shore Cultural Center because, when we put that stretch in, the department wanted to make sure that cyclists weren’t in the road by the cultural center. So they put that law in for that one location, but it doesn’t apply to other places.
JF: The concern that I have is that, and I haven’t seen this instance yet, but I could envision an instance where a bicyclist is struck in the street and then they’re issued a citation, in effect blamed for causing or contributing to the [crash] because they were riding in the street and not the protected bike lane.
LH: Actually, if you look at the language we’re OK.
Mike Amsden: It says “adjacent to the roadway.”
LH: This is in the roadway. “Adjacent to the roadway” is not the same thing as a curb lane in the roadway.
Gabe Klein: But it’s a good point, something that we need to talk to [the Illinois Department of Transportation] about, just to say, “Hey, the way things are written in various places, doesn’t really apply to certain infrastructure.”
Brendan Kevenides: Do you know if CDOT’s position with regard to having to use the protected bike lane versus the street is in writing somewhere?
LH: The position is that cyclists can use the whole roadway. Just because we’re putting in these facilities doesn’t mean that bicyclists have to stay in that facility. For example, what if they need to make a turn? They have to go out of the facility at that point anyway.
BK: ‘Cause I have the same concern. For example on Kinzie, especially, and it’s a sliding scale, but where you have that level of division from motorized vehicles, I can imagine a judge who’s considering this saying, “Well, that’s a usable path.” The statute is somewhat vague and wasn’t written when these protected bike lanes came into existence, obviously. So is there something I can look at, something I can cite to?
LH: You can look at the code. I don’t think there’s anything beyond the code right now, but we’ve been having a lot of conversations, not just about bike lanes but about things like pedicabs…
Ron Burke: Would it be helpful if the city’s legal department or someone wrote a memo?
BK: That’d be great.
LH: We can get [the law department] on this. [They've] already written this internally. So we have some documentation.
BK: Wonderful.
Charlie Short: I was going to say, the national trend is to eliminate that sort of language. Because it was written in 1990 when there were only bike paths [in Chicago] and so it made sense. Usually the tendency is to eliminate that language entirely and actually Illinois has eliminated that language.
JF: Does Chicago have a plan to do that?
LH: It only was meant to apply to that one location, so I don’t see any reason why we can’t eliminate it or put clarification in.
JF: Well, I guess we’ll see if it’s a problem then [laughs].
RB: I think what I hear Luann saying is, legally it’s not a problem now. No one’s enforcing it that way, the code is pretty clear. If we can get like a legal memo to that effect which clarifies that, that might be a clearer path forward than trying to change the code. But who knows, maybe there’s some clean-up language going through the city council that you could throw in.
LH: Well, we’re always trying to clean up issues with the city code, right Charlie?
RB: Cool.
I am looking forward to seeing the promised memo, something official I can show an opposing attorney or judge should this issue arise in a bicycle crash case.
The provided clarification is appreciated and is good news for city cyclists.  Because we are so vulnerable on the road compared to other users, it is important to have options for dealing with the inevitable challenges that come with sharing the road with motor vehicles. Also, not being required to use the protected lanes means that bicyclists can offer the city helpful feedback regarding what works well and what does not.  In meetings I have been at with city planners they have earnestly admitted to a desire to learn over time how to make the bike lanes safer for cyclists, without unnecessarily inconveniencing pedestrians and motorists.  If the city builds something that sucks, then cyclists will not use it and that is important information for CDOT to have.
A few words of caution:  If you are hit by a car while riding outside of a nearby protected bicycle lane, remember that if the matter goes to trial, jurors tend not to leave their feelings outside the courthouse door.  You may be viewed less sympathetically for choosing to ride outside the bike lane.  This could hurt your chances of a good legal outcome.  Also, there is no small amount of controversy over the city's decision to spends lots of money on bike specific infrastructure.  Frankly, a lot of motorists are pissed about it and may feel compelled to act aggressively toward a bicyclists ignoring the bike lane.  If you decide that the protected lanes are not for you, I strongly recommend riding at about the same speed as traffic and to take extra care to follow the rules of the road to avoid conflict.

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