Cycling/Rules of the Road update: Changes in Florida Law that impact Motor Vehicles / Bicyclists effective July 1, 2021.

New laws took effect July 1 that impact the motorist / cyclist interaction (perhaps ‘impact’ is a poor choice of words). Regardless, please CLICK HERE to view what is known as Senate Bill 950 (SB 950), it was passed this last legislative session and signed into law on June 29, by Governor Ron DeSantis. I have detailed below some of what is updated under SB 950 including defining a bike lane, 10 cyclists = 1 at a stop sign, 3 foot rule better defined and now provides guidance to a driver as to when and how to pass, even in a no passing zone. There is a new safeguard for cyclists against the ‘right hook’.

What is a Bike Lane? Bike lanes long predated SB 950. Post SB 950, a bike lane is now an area “which is designated by pavement markings and signs for preferential or exclusive use by bicycles.”

Why is this important? (what is not a bike lane)

1. A narrow shoulder (wide areas to the outside of the white line) is not a bike lane. Police or aggrieved motorist can no longer tell bicyclists to ride in the narrow shoulder, claiming it to be a bicycle lane.

2. A Shared Path is not a bike lane. SB 950 resolves any prior confusion. Exclusive use has always been the key. A shared path is NOT a bike lane.

SB 950 does amend (albeit subtly) sec. 316.2065, Florida Statutes, which has always required cyclists to ride in designated bike lanes where provided. The same enumerated exceptions apply. 

I have discussed this issue in prior posts. It is infuriating when motorists yell at cyclists, or worse, give an aggressive brush by, when they (improperly) deem that cyclists should be using shared paths such as the Old Cutler Trail (pictured to the right).  As indicated on the trail map, the path is open to many activities, three of which are depicted on the route info sign: walkers, skaters as well as cyclists (and many do use it). Not pictured, but also heavy users of the Old Cutler Trail (and other similar shared paths): strollers, golf carts, wagons, pet walkers – all kind of users who justifiably also enjoy use of the shared path, but do not mix well with the fast moving cyclists. See PRIOR RELATED POST of June 22, 2021, Palmetto Bay can change the project, but municipal officials cannot change State Law which determines where bicyclists may ride.

Sharing the road – the legal way to overtake a cyclist. The where and how are better defined under SB 950.

The 3 foot rule predated SB 950, but I have yet to hear of any traffic citations having been issued for violations (I am not saying it has not been enforced, I have merely not heard of any specific instances). The driver of a vehicle overtaking a bicycle or other nonmotorized vehicle, or an electric bicycle, must pass the bicycle, other nonmotorized vehicle, or electric bicycle at a safe distance of not less than 3 feet between the vehicle and the bicycle, other nonmotorized vehicle, or electric bicycle. See: Florida Statutes 316.083 (1) (Bold emphasis added)

SB 950 provides specific guidance for motorists overtaking and passing a vehicle.

SB 950 now requires a motorist to remain a safe distance behind the bicyclist if they cannot pass with at least 3 feet distance, until such time that they can.

New to the law, SB 950 also requires drivers to give 3 feet distance when passing a bicyclist traveling in an adjacent bicycle lane (but not a separated bicycle lane).

For drivers of motor vehicles – frustration reduction – Many drivers would (justifiably) become frustrated following cyclists in a no passing zone (marked along many areas of Old Cutler Road). SB 950 clarifies that drivers of Motor Vehicles are allowed to overtake and pass a bicyclist while both are in a no-passing zone, provided it is done safely. (Bold emphasis added). (Amending sec. 316.0875, Florida Statutes.)

I bet you never heard of a "right hook" outside of boxing (or MMA for the Gen Xers and younger).

SB 950 addresses a big risk the cyclists - the aforementioned 'right hook'. This is where a motor vehicle passes a cyclist only to almost immediately make a right turn in front of that cyclist, essentially cutting him or her off. This is one of the biggest causes of cyclist/motor vehicle accidents.  SB 950 offers greater protection for cyclists in that a driver of a motor vehicle may not turn right unless there are no cyclists within 20 feet of the intersection. (Amending sec. 316.151, Florida Statutes.)

10 cyclists now equal a single vehicle at a traffic control device. It is now spelled out in the law. SB 950 provides a new addition to Sec. 316.2065, subsection (6)(b), which provides that

(b) When stopping at a stop sign, persons riding bicycles in groups, after coming to a full stop and obeying all traffic laws, may proceed through the stop sign in a group of 10 or fewer at a time. Motor vehicle operators must allow one such group to travel through the intersection before moving forward.

I do not expect this provision to be popular with drivers. SB 950 sets the limit number at 10. Not 20. Not even 11 – its 10.

As I have pointed out in numerous blog posts, Florida Statutes, Chapter 316.2065 Bicycle regulations.— provides that bicyclists have the same rights to the roadways, and must obey the same traffic laws as the drivers of other vehicles. These laws include stopping for stop signs and red lights, riding with the flow of traffic, using lights at night, yielding the right-of-way when entering a roadway and yielding to pedestrians in crosswalks.

Please don’t merely rely upon what I have posted here. I invite you to follow the links and read the law for yourself. Your interpretations may differ. The greater protections work well for cyclists and the drivers of motor vehicles benefit from the clarification of when they can safely pass, even if in an area marked as a no-passing zone.

Please ride and drive safely out of the road. Let’s all look out for each other and be courteous.

LUXCOM - Tuesday, July 14, 2020 is mediation day. a day that will set the future of development in Palmetto Bay. Some thoughts.

Residents of Palmetto Bay were promised 1 unit an acre at the LUXCOM property, formerly known as the FPL property. So how is that working out?This is another of a series of updates relating to this land use issue that may set a precedent for years to come.

The "mediation" is set for Tuesday, July 14, 2020. I put the quotes around mediation as there is no Bert J Harris claim lawsuit filed, at least yet. Pre-suit mediation do happen by agreement of parties, but the fact of this matter is that this matter could have been worked in the public through a zoning hearing, where residents could have attended and put in their testimony, their input into the final numbers. 

At last check, the negotiations offered by Palmetto Bay officials included the following:

• 145 units (which is significantly more than the 1 unit per acre limitation imposed by Palmetto Bay - promised to residents by this mayor and council)
• Revert the zoning back to "institutional" but specifically excluding a use for a hospital, or
• Participate in binding arbitration

The one unit an acre zoning was represented as fully defensible by both the Mayor Cunningham and Vice Mayor DuBois. If this is true, then why the offer for significantly more units? Once again, the issue is whether this promise and council action - setting one unit an acre - will be aggressively defended or will the political realities and promise breaking rear its ugly head once again. 

Perhaps this is less about political promises, but in reality demonstrates that the current administration is out of their depth, unable to fully grasp zoning issues and property rights.

Should the council exceed 1 unit an acre? The bottom line: LUXCOM has few true expectations of unit rights. Why?

• They purchased a property known to be contaminated. A known health risk not just to the site, but to surrounding areas.
• Due to the contamination, there is a valid argument for ZERO units per acre.
• The majority of the site had only been used for power plant production, not residential (and is also the reason for the contamination).
• The area to the north is in a differing jurisdiction, Coral Gables - which has its own zoning / land use codes, rules & regulations; what I considered to be a 'hard wall' against liberally applying any trend of development into Palmetto Bay.
• The area and few houses (caretaker houses) were zoned 5 unit and 1 unit per acre in the applicable close proximity. This would support reasonable zoning decisions of between 15 - 65 units on this entire property.
• Hearings were held on the legislation establishing the 1 unit per acre designation.
• (There are many more reasons not included here)

LUXCOM is significant. This may be the first time ever that a Palmetto Bay mayor and council upzone any property, increasing density. This property has important distinctions from the Palmetto Bay Village Center (PBVC). First of all, back in the 1980s, the PBVC won a court-order right (against Miami-Dade) to over 1,400 residential units on the 80 acres long before Palmetto Bay residents ever though of becoming a municipality. Palmetto Bay officials have worked hard to whittle down the number of units over time. LUXCOM is an attempt to actually INCREASE the number of units.

But now is not the time to interject, let's see what happens. Perhaps Palmetto Bay Village Officials will keep their promises and fight to reign this project in and keep the 1 unit an acre designation that was promised to the voters, the residents of Palmetto Bay.

Fair questions:

• How long will we be kept in the dark as to any agreement reached at this mediation? 
• Will an impasse be announced the same day? 
• Will a proposed settlement be announced or will we have to wait until the proposed settlement is released in an agenda for a special council zoning meeting to approve the proposed settlement? 
• What happens if a majority of the Village Council rejects that proposed settlement, or, 
• One possible result being talked about - an announcement that no agreement was reached; that an update mediation will take place after the respective attorneys confer with their respective clients (one possible translation: pushed off until after the upcoming elections).

PREDICTION: Mediation will start, but will suspend and reset for another day further down the road, preferably after the upcoming elections.

BREAKING NEWS! Palmetto Bay Vice mayor will call for a Special Council meeting to discuss filing suit against Miami-Dade County.

Will Palmetto Bay face off against Miami-Dade County, specifically Miami-Dade County Transit (DTPW) in court? If so, what are the relative gains versus risks, both immediate to the lawsuit as well as for future relations with Miami-Dade County?

Miami-Dade County notified Village Staff and Member of the Village Council that the 4-way stop signs temporarily placed on 87^th Avenue at 174^th  will be taken down. If my memory is correct, these 4 way stop signs were placed there conditioned as a temporary measure, only for so long as it took for the Village of Palmetto Bay to fund, design and construct a traffic circle at this location (with County approval). The Village Council agreed to this, but then voted down the traffic circle at the October 4, 2019, Regular Village Council meeting.

It is my understanding that the deal was: no traffic circle, no signs.

Response to date? The following was put out from a resident, providing a response from the Vice Mayor to (their) email: 

I (Vice Mayor John Dubois) have called for special council meeting on Oct 17that 7pm for a resolution to instruct the City Attorney to file an emergency motion for preliminary injunctive relief against the County to stay them from forcing us to remove the 4-way stop signs for reasons of public safety until we have a ruling from the county commission on this matter. The resolution also includes instructions for a petition to the county commission to instruct their DPW to cease and desist from their action to have the stop signs removed. It shouldn't be a problem to leave the stop signs there.

I will not be supporting a traffic circle there or anywhere else unless there is a public safety benefit.All of the data I have seen indicates that traffic circles cause more accidents than stop lights and stop signs.

I spent 20 years living the capital of the US for traffic circles - Wash DC. Even thought they were typically much larger circles, they too were the culprits for about triple the number of accidents vs. traffic lights and stop signs.

Please note that there is no notice of any such meeting posted on the Village website as of 2:15 PM, Wednesday, 10/9/2019.  

10/10/2019 update- the meeting has been added to the village website, listed on the Public Meetings Section (CLICK HERE).

RECOMMENDATIONS: Please weigh the benefits and risks. This will be interesting. Miami-Dade County has been both partner and opponent to Palmetto Bay at various times on traffic issues. We have received millions in traffic related Grants from Miami-Dade County including the $7.5 million obtained under my leadership that was applied to the Franjo Road revitalization. See: July 19, 2016, Final approval from our County Commission- $7.5 million GOB grant APPROVED. More good news for Palmetto Bay. Another grant obtained under my advocacy was a $1 Million TAP Grant for mobility improvements (CLICK HERE). I even pushed and obtained the grant currently being used for the FREEBEE - CLICK HERE - TPO Service Development Grant Program awarded to Palmetto Bay - $225,000 for this upcoming year, year 1of a 3 year grant.

I ask the Village Council Members to tread carefully and not file a lawsuit unless it has a solid chance of success, but also be mindful of what future ramifications are for loss of significant partnership, including placing the entire Old Cutler Road traffic relief program on hold creating traffic nightmares for years to come.

There is much I have written, much more that I could write. But a lawsuit changes the dynamic and could put all other projects at risk, that are far too numerous to list here.

Why not Mangowood? Finally, why now, this lawsuit for Malbrook, and not discuss taking the same action in regard to the past removal of the 4 way stop signs the County removed from Mangowood? CLICK HERE to read more about Mangowood, past traffic town hall meetings and work to find comprehensive traffic solutions.

Interested residents have the right to speak at any/every meeting of the Village Council

Monday - October 7, 2019: 

I have been asked whether Residents will be able to speak at the Special Council meeting set for (tonight), Monday, October 7, 2019, at 6:50 PM. The short answer is “YES”. Section 286.0114(2) provides: “Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission.”

Note that the single substantive agenda item is in fact noticed as "3. RESOLUTION WITH PUBLIC COMMENT." Kudos to our Village Attorney and Clerk for the proper notice of this meeting (as provided by agenda - I do not recall receipt of a courtesy e-mail on this special meeting).

I remain proud that under my terms as Mayor, Palmetto Bay always had a section of the agenda for Public Comment from our very first agenda. 

Were you aware that while the Florida Sunshine Law has long granted the public a right of access to such meetings, there was no general requirement for public comment until 2013, when the legislature enacted F.S. 286.0114.

Section 286.0114(2) provides: “Members of the public shall be given a reasonable opportunity to be heard on a proposition before a board or commission.”

Eugene Flinn

The Village of Palmetto Bay is not legally or morally required to enter into/accept or otherwise continue to entertain this P3 proposal for the Franjo Road area.

The discretion rests with this current Mayor and Village Council – and with no other past, present, or future people or entities.

Would you like additional resources before the decision is made on the pending Public Private Partnership (P3) unsolicited bid presently pending before the Palmetto Bay Village Council? The City of South Miami has published its own guidelines for Public/Private Partnerships, Solicited and Unsolicited Proposals and Evaluation Process.

See the 24 page document created by the City of South Miami:

GUIDELINES FOR PUBLIC/PRIVATE PARTNERSHIPS,

SOLICITED AND UNSOLICITED PROPOSALS AND EVALUATION PROCESS

(Revised 4-10-2017)

*Note – as conspicuously stated within the guidelines promulgated by the City of South Miami;

The City reserves the right at all times to reject any or all bids/proposals at any time before signing a Comprehensive Agreement for any reason and may decline to pursue the Proposed Project. In the latter event, the City may accept new proposals for the Proposed Project should the City choose to restart the process at a later date. Discussions between the City and Private Entities about needed infrastructure, improvements, or services shall not limit the ability of the City to later decide to use standard procurement procedures to meet its infrastructure needs, whether the project will be a public/private partnership or not. 

QUESTION: are the Mayor and Village Council required to enter into the pending P3 proposal?

SHORT ANSWER FOR PALMETTO BAY:  NO. The Village of Palmetto Bay is not legally or morally required to enter into/accept or otherwise continue to entertain this P3 proposal for the downtown/Franjo Road area.

The discretion to move forward with approval or to deny (or anything in between) rests with this current Mayor and Village Council – and with no other past, present, or future people or entities.

CLICK HERE for 12 prior relevant posts providing significant details as to the Palmetto Bay Downtown Unsolicited Bid development issue.

US Supreme Court provides a Federal right to contest local government action affecting property rights. Knick v. Township of Scott, Pennsylvania - From the SUPREME COURT OF THE UNITED STATES BLOG (SCOTUSblog)

Most failed to notice a Supreme Court decision published Friday, June 21, 2019: Knick v. Township of Scott, 588 U.S. _____ (2019).* The US Supreme Court expressly overruled the legal precedent of Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), extending Federal Civil Rights, 42 U.S.C. Sec. 1983, to land use actions by local governments. 

WHY THIS IS IMPORTANT: Federal court litigation and rights under 42 U.S.C. Sec. 1983 may provide much greater property rights to aggrieved land owners than the State remedies. My thanks to Palmetto Bay Council Member David Singer who does his research and stays abreast of developing issues and the law. Preparation is invaluable.

RELATED PRIOR POST: I invite readers to review my prior post of March 31, 2019, Update on DUV revisions. Reviewing attorneys' opinions and considering in light of transparency in the Village. Do these detailed legal opinions require updates in light of the Knick v. Township of Scott, US Supreme Court decision?

The "Ku Klux Klan Act": Section 1983 was enacted on April 20, 1871 as part of the Civil Rights Act of 1871. It is also known as the "Ku Klux Klan Act" as one of its primary purposes was to provide a civil remedy in Federal Court against the abuses that were being committed in the southern states, especially by the Ku Klux Klan. This action provides a Federal remedy to provide protection, the only remedy in some local areas, where laws may have existed to protect citizens in theory, but protection in practice was non-existent to some because those persons charged with the enforcement of the laws were unable or unwilling to do so. Section 1983 was intended to provide a private remedy for such violations of Federal law.

In land-use cases, the federal statute 42 U.S.C. § 1983 protects property owners against municipal actions that violate a property owner's constitutional rights, including actions that violate a property owner's rights to due process, equal protection of laws and just compensation for the taking of property under the Fifth and Fourteenth Amendments to the United States Constitution.

Impact to bringing claims in Federal Court: Prior to last Friday (June 21, 2019), aggrieved property owners were expected to litigate state claims, such as inverse compensation claims, before they could take their federal property rights claims to federal courts.  The US Supreme Court rendered a 5-4 decision on Friday, June 21, 2019, that overturned this existing precedent and it will have major impact on property right litigation filed by property owners against local governments for ordinances that impact their property.  

It appears that under the Knick v. Township of Scott, 588 U.S. _____ (2019) decision, government regulation can be considered a "taking" within the meaning of the Fifth Amendment overruling a prior decision, the president set by a prior US Supreme Court in Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985)

Please note that the immediate information posted below is taken verbatim from the SUPREME COURT OF THE UNITED STATES BLOG (SCOTUSblog):

Knick v. Township of Scott, Pennsylvania

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
17-647	3d Cir.	Jan 16, 2019 Tr.Aud.	Jun 21, 2019	5-4	Roberts	OT 2018

Holding: A government violates the takings clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim under 42 U. S. C. §1983 at that time; the state-litigation requirement of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, is overruled.

Judgment: Vacated and remanded, 5-4, in an opinion by Chief Justice Roberts on June 21, 2019. Justice Thomas filed a concurring opinion. Justice Kagan filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined.

SCOTUSblog Coverage
________________________________________
OTHER NEWS SOURCES/INTERPRETING THE KNICK DECISION

National Public Radio (NPR) and its report of this decision and potential impact: NPR - LAW - Supreme Court Overturns Precedent In Property Rights Case — A Sign Of Things To Come?, by Nina Totenberg, June 22, 2019:

As reported:

A sharply divided U.S. Supreme Court ruled Friday that property owners can go directly to federal court with claims that state and local regulations effectively deprive landowners of the use of their property.

The 5-4 decision overturned decades of precedent that barred property owners from going to federal court until their claims had been denied in state court.

Federal courts are often viewed as friendlier than state courts for such property claims. The decision, with all five of the court's conservatives in the majority, may have particular effects in cities and coastal areas that have strict regulations for development.

Property owners and developers often have complained that zoning rules and other state and local regulations effectively take their property for public benefit, and that the Constitution requires that they be paid just compensation.

          CLICK HERE to read the full NPR article

More to come on what, if any, impact this will have upon Palmetto Bay & Cutler Bay pending land use issues.

GOVERNMENT TAKING OF A PROPERTY RIGHT:
What is a taking? That can be an issue decided on a case by case basis, but let’s look at the simple facts of this case, now known as Knick v. Township of Scott, 588 U.S. _____ (2019). The property owner, Rose Knick, was contesting a local ordinance that forced her to allow public access to her private farmland due to the fact that her 90 acre outlying property has a family graveyard – a family, not a commercial public graveyard.

OFFENDING ORDINANCE:
The Ordinance itself is simple. The Township of Scott, Pennsylvania, passed an ordinance requiring that 

“[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.” 

The Township of Scott, Pennsylvania, passed an ordinance requiring that “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.” Rose Mary Knick, the property owner of a 90-acre rural property with a small family graveyard, was notified that she was violating the ordinance. Ms. Knick sought declaratory and injunctive relief in state court on the ground that the ordinance effected a taking of her property, but she did not bring an inverse condemnation action under state law seeking compensation. 

ORDINANCE WITHDRAWN – NO PENDING ENFORCEMENT – NOT MOOT:
What I find interesting is the fact that the Township responded by withdrawing the violation notice and staying enforcement of the ordinance. Without an ongoing enforcement action, the lower court held that Ms. Knick could not demonstrate the irreparable harm necessary for equitable relief, so it declined to rule on her request. 

FEDERAL COURT ACTION FOR VIOLATION OF CIVIL RIGHTS – THE “1983” ACTION:
Ms. Knick also filed an action in Federal District Court under 42 U. S. C. §1983, alleging that the ordinance violated the Takings Clause of the Fifth Amendment. 

US SUPREME COURT DECISION:
Decided on Friday, June 21, 2019, reported as Knick v. Township of Scott, 588 U.S. _____ (2019) No. 17–647. Argued October 3, 2018—Reargued January 16, 2019 CLICK HERE to view the official published opinion.
_________________________________
* As listed in the Opinion Syllabus; ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a concurring opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. 

DUV update - materials available to Attorneys’ DUV analysis

The attorney's opinions to the Village Council have been received regarding the DUV.  Note that the analysis centers based upon facts as presented. I have posted links for everyone to view and download in order for interested persons to be able to read and interpret the opinions on their own. These opinions may eventually be posted to the Village website, but have not as of noon today, Friday, March 15, 2019.

(CLICK HERE) for Memorandum of LEHTINEN SCHULTZ, PLLC, Village Attorneys, dated March 6, 2019, consisting of 44 pages

(CLICK HERE) for Memorandum of John R. Herin, Jr., Esq., Fox Rothschild LLP, dated March 4, 2019, consisting of 9 pages

(CLICK HERE) for Memorandum of John Quick, Esq., Weiss Serota Helfman Cole & Bierman, dated March 6, 2019, consisting of 34 pages

These attorney opinions will be important tools for the revisions to the DUV Code.

IMPORTANT NOTE (DISCLAIMER): As stated in one footnote (a legal disclaimer): (The attorneys) cannot and do not make any representations or warranties concerning the likelihood of any particular property owner initiating and prevailing on a Bert Harris Act claim against the Village, or the outcome of such claim. We do believe, however, the analysis contained in this Memorandum represents the current state of the law in Florida on the matters set forth herein.