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Seattle Met: City attorneys successfully argue that biking is not ‘ordinary’ on Westlake Ave

BikeWise.org map of bike crashes. Can you spot where the streetcar runs? (blue=solo crash, red=car involved)

The most recent issue of Seattle Met has a whole lot of bike stuff. But the centerpiece of their coverage is a feature on bike lawyer Bob Anderton’s lawsuit on behalf of a handful of people who crashed and were inured on the South Lake Union Streetcar tracks.

We have written about the dangerous tracks before. The short version of the story is: The city saved some money in 2007 by installing the Westlake Ave streetcar tracks in the curb lane instead of the center, thus ruining the road for people cycling and creating one of our city’s worst bicycle hazards. Streetcar tracks are the perfect width to grab bike wheels with very common skinny or medium tires, sending the person biking flying to the ground in the middle of a busy street.

But the most shocking part of the city’s legal defense against Anderton’s case is that the city admits it knowingly designed the streetcar tracks in a way that is dangerous for people cycling. But assistant city attorney Rebecca Boatright (who cycles to work almost every day) argued that because the road now has a streetcar and no bicycle facilities, bicycling is not an “ordinary” use of Westlake Ave. Therefore, the city did not have the obligation to design it to be safe for people biking. The streetcar line was designed before the city passed its complete streets ordinance in 2007, which mandates that all road users are considered in roadway designs.

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From Seattle Met (page 4):

She took that line of thinking one step further last March, when she filed another motion, this time requesting that the court throw out Anderton’s case altogether. “A distinction must be drawn between the City’s aspirational goals for promoting alternative transportation options and its legal duty of care with respect to the engineering and maintenance of its roadways,” she wrote in the brief. In other words: State law requires a city to keep its streets reasonably safe for “ordinary” travel, and because Westlake was now home to a streetcar line, cycling was no longer “ordinary” on that street. The City hadn’t designated it a bicycle facility by painting in bike lanes, Boatright said, so it had no obligation to pay special attention to the needs of cyclists.

Legally speaking, the argument may have been sound, but the City was contorting itself to protect its position and threatening to alienate the cycling community it had worked so hard to embrace. Even SDOT’s communications manager Rick Sheridan, who would only take my questions via email because the case was ongoing, seemed to have difficulty addressing the issue head on. When I pointed out the irony of an otherwise bike-friendly city arguing that cycling isn’t ordinary travel, he went into Bill Clinton depends-on-what-your-definition-of-is-is mode: “The term ‘ordinary’ can mean different things to different people, and it has both a vernacular and a legal meaning,” he wrote. “This is a question that is better asked of the City’s legal department.”

In the end, the City Attorney office’s decision to throw cyclists under the bus—metaphorically speaking, of course—may have been an example of needs trumping wants. The South Lake Union Streetcar was an expensive piece of transportation infrastructure, and one that can’t just be picked up and moved. So had Boatright not employed every argument available, including the ones that contradicted the city’s stated desire to promote bicycling, she risked losing the case and spending the next several years settling lawsuits from every bike rider who’s fallen—and will fall—on those tracks. Boatright herself will even cop to that, although not in so many words. “If we’re going to incur liability because some bicyclists have fallen on the tracks, then maybe we’re going to have to consider the draconian measure of telling bicyclists, ‘You don’t get to decide for yourself how to get from point A to point B,’ ” she says. “And we wanted that guidance from the courts.”

Now wait, before you smash your keyboard into a thousand pieces, take a deep breath … hold it … hold it … ok, let it out. Ahhhhhhh. There, that’s better, isn’t it?

The city saw a long (unfortunately, very long) line of people queued up to file the same lawsuit if the courts found the city liable for the injuries of people who crashed while biking on the tracks. So to avoid that, they pulled out every argument they could to get it thrown out. Law can be a dirty business.

Meanwhile, there is still no bike route that effectively parallels Westlake Ave. 9th Ave has bike lanes but effectively dead-ends at its north end (especially amid the never-ending Mercer construction). Dexter is ten blocks out of the way roundtrip and requires a hill climb. While I avoid Westlake at all costs, human nature dictates that many people are going to take the flattest and most direct route. And that continues to send people crashing to the ground.

But there you have it. The city got the lawsuit thrown out (Anderton’s clients are mulling and appeal) in part by telling a two-faced lie, contradicting their long-standing support for encouraging cycling and road safety in order to avoid being liable for all the blood spilled on Westlake Avenue since the dangerous and short-sighted streetcar tracks were installed. Meanwhile the city still has no good plan for safe and efficient bike routes in South Lake Union. What are we waiting for? For someone to crash and die?

Actually, I take it back. Go ahead and smash your keyboard.

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45 responses to “Seattle Met: City attorneys successfully argue that biking is not ‘ordinary’ on Westlake Ave”

  1. Breckenridge Cartwright

    I just use the left of the two lanes. Let cars pass on the right. It is weird, but it is significantly more safe than riding with the rails.

    1. +1

      I ride Westlake all the time. And it’s just fine if you take the lane.

  2. […] original here: City attorneys successfully argue that biking is … – Seattle Bike Blog This entry was posted in Blog Search and tagged argument, attention, bicycle, boatright, city, […]

  3. JAT

    Argh! I have often voiced the opinion that over-reliance on bicycle specific infrastructure can lead to the ghetto-ization of cyclists to only using that infrastructure, and now we see how that argument will be made.

    Prior to the SLUT, Westlake (south of where it hits lake Union at least) was an ordinary bicycle route; I rode on it all the time. During construction of the SLUT Westlake was un-usable for stretches, and after the SLUT it became a treacherous ordinary bike route. If lack of a bike lane or sharrow allows the City, abracadabra, to say it’s not an ordinary bike route (despite the fact that cyclists always used it in an ordinary manner) and therefore they had no duty of care to cyclists in designing their stupid streetcar Paul Allen Greg Nickles vanity project, then where else does the city owe us no duty of care in road design?

    Apparently everywhere where they haven’t painted a bike lane or a sharrow.

  4. RTK

    I ride this almost every day, but in the up hill southbound direction. Not really a problem in that direction if you are aware of the tracks and how to cross them as you enter or exit the lane. That said, there is obviously a problem here for those not used to the tracks.

    1. Gary

      There is a problem for even those used to the tracks. It’s all to easy get pushed out of the center lane to right without enough space to get over that slot and even if you do, it’s very hard to ride out of it as the tracks are only a couple of feet apart.

      Still though it’s totally circular reasoning, “because we made the road dangerous, it’s dangerous, and you shouldn’t use it.” (or at least try to sue us.)

      1. RTK

        There is room in the lane to ride to the left, between or right of the tracks. I use the between method, and would not ride to the right or tracks until you were several blocks north of Mercer, then there is significant space.

  5. Rabbd

    Are there ordinarily more SLUT riders than bicycle riders on Westlake? The street car always seems pretty empty… like it’s ordinary for people to avoid it and just walk the few blocks in between stops.

    1. Jeremy

      Hard to say without metrics; the SLUT riders have mostly looked like tourists or the elderly when I’ve wandered around that area (mostly on weekends). The Mercer sewer does put a damper on livability, notably from the speeding vehicles and insanely long pedestrian wait cycles.

      Bicycling around that area is challenging, even without the rails and Mercer sewer, starting with the Sudden Stairs Of Death to the North (did you remember to dodge right?), dangerous roadways (yay tilted gapy concrete slabs), dangerous sidewalks (warning: curb, or divert 12 feet off course for ramp oops car idling in way), and now-we-route-the-bicycles-randomly-through-a-parking-lot-good-luck diversions.

      1. Gary

        From the cascade bike to work challenge site, there are about 170 riders from Amazon.com who are in that area.

        Not all tourists, and with the estimate from the times of 7K employees in Seattle one can expect that not all of them who ride signed up.

      2. Jeremy

        Granted, if there were a streetcar that actually went somewhere (connecting up to at least NE Campus Parkway or ideally more of the route 70 run) or usable bicycle network, we might be able to get some real numbers. At present, the neighborhood is built for cars, cars, and more cars.

  6. You must pay attention when in this area i have been down Westlake. the tracks are not going to be taken up so please be careful.

  7. Westlake

    I really hope there is an appeal.

    Surprised that nice long Met article didn’t mention the last minute street signs warning of a bicycle hazard nor that Westlake Ave N. was northbound only prior to the SLUT. Also that Ethan Melone’s name didn’t pop up, my understanding is that it’s all basically his fault.

  8. Dbsea

    The SLUT is a waste (thanks Paul !) and this entire argument by the City, which I understand in a money sense, is a steaming pile. Thank you Seattle for telling the very people who are actively supporting your non-car initiatives that they don’t matter. Their safety and lives don’t matter. Your dollars matter more. I mean, OUR effing dollars that you take every year. Well done.

  9. no traffic lights

    We’ll inevitably be getting into some of the usual circular ‘war on bikes’ nonsensical discussion but regardless of politics, that is one horrendous piece of infrastructure design.

    I can’t wait for another pile-o-chit from the deep-bore designers.

    1. The DBT designers will, indeed, do some really awful stuff for everyone that’s not driving through the thing. Why? Because there are standards to which the road must be built that dictate its footprint, and no standards for the effects on the pedestrian environment, peripheral traffic impacts, etc.

      Intersections are given a grade (school-style letter grades) by traffic engineers based on average delay for drivers getting through. And often the tactics used to raise the grade hurt the pedestrian environment, but there’s no grade for that.

      Maybe we need to have standards and grades for biking and walking. Westlake was a C for biking, now it’s an F.

  10. Mondoman

    Seems like the city is forced to make such an argument when you’ve got lots of people suing for things that in the past were considered personal responsibility. I’m fine with the tracks there — I agree it makes it more dangerous to ride a bike in the street there, so I ride on the sidewalk.

  11. BenJammin

    Sounds to me like Anderton didn’t make his argument well enough…

  12. use the right tools for the job

    My Conti T&C’s don’t get caught in the rails, and I take Westlake all the time. I also haven’t had a pinch flat in the 12 years since I switched to them.

    You wouldn’t supercross a sportbike, or drive a shifter cart to work on public roads, right? Skinny tires put your life at risk. Your commute is not a race. Be safe, and use the right tools for the job: fat tires and a head on a swivel.

    1. copenhagenize_this

      “Your commute is not a race.”

      Nor is it always a *SLOW* leisurely activity. I have the right to get from point A to B in a fast and efficient manner. I don’t judge your bike so why are you judging mine?

  13. JT

    I fell on the Westlake tracks last year and it never occurred to me that it was anyone’s fault but mine. I changed my route.

    1. Todd

      Unless you’re a born activist, I think this is the normal, appropriate response. Especially considering there are a gazillion other roads to ride on.

  14. Tim

    It would be very difficult for cyclists to win these cases, IMO. Looking at case law, the public generally favors public transport infrastructure over cyclists. They seem to take a ‘favor the many over the few’ tack. Thus busses, streetcars, and light rail structures will likely prevail at trial, unless the plaintiffs can win on the law itself, and that looks to be too vague.

  15. Jim Ewins

    Most streets do not accommodate a mixture of motor vehicles, buses, trolleys, bicycles and pedestrians. They need separate means of travel. Remember when a car approaching an intersection had to stop and wave a flag or lantern so that horses and wagons could take precautions. Perhaps bicycles should do the same.

  16. I rode Westlake today. On my winter bike, it’s not totally terrifying, but I was on my summer bike, and you really have to pay careful attention.

    If biking is not an ordinary use of Westlake, then why are their bike racks on Westlake?

    For example, this rack: https://maps.google.com/maps?oe=utf-8&client=firefox-a&channel=fflb&ie=UTF-8&q=westlake&fb=1&gl=us&hq=westlake&hnear=0x5490102c93e83355:0x102565466944d59a,Seattle,+WA&cid=0,0,16040946040768873749&ei=98vGT9ndCoSg9QSNyM3zCw&oi=local_result&ved=0CBYQ_BIwAA

  17. OK, that URL didn’t work right. The rack I’m talking about is near the intersection of Westlake and Thomas, on the NW corner. I used to use that rack all the time when my company’s bank was near there.

  18. Bill Bacon

    That whole area is one fun obstacle course for cyclists.. Sort of reminds me of what I went through in boot camp forty-six years ago. The tracks aren’t much of a challenge, but negotiating this area during rush hour is quite exhilerating … sporting, even. I like all the potential pitfalls for pedestrians, motorists, cyclists, and SLUT operators alike. It’s an alphabet soup of dung in a bowl. I’m no city planner, but this morass must have been put together by morasses. Why should I pay to ride on Westlake via the SLUT when I can do it more efficiently on my bicycle? I think cyclists should enmass dominate Westlake as much as is possible. It might slow down traffic just a little, making it safer for everyone. And who needs the SLUT? Geesch!

  19. JT

    I don’t understand all the hyperbolic ranting.

    First, the streetcar does its job better with the tracks in the side than in the center–it improves access for streetcar riders. The city chose to build expensive infrastructure there, and it makes sense to build it to be as effective as possible. Second, saving money on expensive infrastructure is important–the reason we have so little is that costs seem to escalate so rapidly for what we have built.

    That area is gridded–there are like 5 or 6 streets that all run parallel. As you indicate, 9th has bike lanes, so that’s probably where bicyclists should be traveling, despite the inconvenience caused by Mercer construction. Westlake is probably the worst choice of all the options.

    I think there could have been better communication of the dangers of biking amidst the streetcar tracks. But people shouldn’t be biking in those lanes, and I think it’s quite valid for the city to claim that lanes filled with streetcar tracks are not bicycle facilities. They’re not!

  20. Todd

    Yeah, my underwear isn’t in a bunch on this issue. For crying out loud, we don’t need equal access on every road. Put up some damn signs that restrict us. There are plenty of other options out there.

    1. Yeah, let’s ban biking on basic surface streets. The streets that people live on, work on, and shop on.

      It’s usually possible to get within a block of any particular place on Westlake without actually riding on it, but if it’s an unfamiliar place that requires more precise knowledge and more planning ahead. If you have the address of a place you may not know exactly which cross streets it’s between but if you have access to the street you can get there easily.

      1. By analog, consider 45th in Wallingford, a pretty dismal place to bike. It’s always possible to go around it, and now we even have an official signed bike route on 44th. But since 45th is the main business street it’s important to have the right to access it on bike.

      2. Todd

        I could care-a-less about biking on Westlake. Ban it. Fine by me.

    2. David

      Sure, lets ban bikes on Westlake. But first lets ban motor vehicles on Dexter and a number of other streets that are used regularly by bikes.

      1. Todd

        Now that’s a hell of an idea.

  21. Jennifer L

    I have DEFINITELY gotten caught in one of those tracks before. Good lord was I scared.

    1. Todd

      I’ll bet you didn’t make that mistake again or more likely avoided it. I also further state that your avoidance hasn’t really inconvenienced you or caused you to suffer.

  22. Jonathan Mark

    I hope the new First Hill streetcar will not also be dangerous. Even with the tracks at the median, they could still be a hazard in turning situations, or where the tracks are turning, or both.

    Similarly with the cycle track. I am trying to visualize how I will make a left turn across a lane of oncoming bike traffic, then a lane of same-direction car traffic, then streetcar in either direction, then oncoming car traffic. Oh, and be sure to cross the track at a safe angle… may have to slow down in the middle and sharpen the turn.

    Are safety best practices being followed here or is it just the old ways with slight modification?

    1. You’ll make a left turn by doing what the Aussies call a “hook turn”, the same thing we already do on mega-arterials anyway. From the cycletrack, proceed into the intersection when you have a green light, then pull off slightly to the right and position yourself behind the crosswalk in the direction you want to go. Now you’re turned, but behind a red light; wait for it to turn green and go.

      This is pretty much how it’s done all over the world where there are cycletracks. The only thing we’re screwing up here is that near intersections we aren’t properly maintaining the separation between cycletrack and sidewalk. It’s not exactly a screaming-fast way to make a left, but these aren’t screaming-fast streets we’re talking about.

      1. Doug

        I call that a “box left.” I use it whenever crossing traffic to make a left is too annoying or dangerous.

  23. “We’re not liable for the results of our making biking no longer an ordinary use of Westlake because biking is no longer an ordinary use of Westlake”? How did that not get laughed out of court?

  24. T Baer

    Emboldened by the City’s win, King County DOT is doing the same thing with Rumble Strips now…

    1. T Baer

      Currently facing some opposition on Vashon Island, however.

  25. For another look at the importance of bike access on streets where biking isn’t “ordinary”…

    Yesterday I drove south down Aurora from 85th and was surprised by how many bikes I saw. I didn’t see anyone riding in the road but I saw bikes parked outside of businesses, and one person riding on the sidewalk.

    And when someone got hit on Aurora recently he was called crazy for riding there. Clearly there are places to go along Aurora. Places people live, shop, and work. When our collective response to people being injured biking down the street where they’re going is to dismiss them, we’re doing it wrong. If we give up a street as unbikeable we give up everything on it as a destination you can go on bike. This applies to Westlake and to Aurora; and to Rainier, MLK, Lake City Way, 15th Ave W. People going through can find other routes, people out for a joy ride can find other routes, but people going there need bike access right there, and nothing else can do.

    1. Gary

      Yesterday I rode on Aurora for maybe 5 miles, it’s not bad at all up at the North King County Border. Lots of lanes for cars to pass, a clear right lane for buses and bicycles only. Just have to be extra watchful.

  26. […] Once the separated Broadway Bikeway is in place, bicycle and streetcar should exist harmoniously, or at least more so than on Westlake Ave, where the South Lake Union streetcar tracks continue to be a significant hazard for cyclists. As seattlebikeblog.com explains: […]

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