Citation ID. NO. B-212976

COMES NOW, Plaintiff CITY OF HENDERSON, NEVADA by and through its legal counsel, LIN T. NG, ESQ., Deputy City Attorney, for SHAUNA M. HUGHES, ESQ., City Attorney of the City of Henderson, and files this Opposition to Motion to Dismiss. This Opposition is made and based upon the pleadings and papers on file herein, along with the following Points and Authorities and any arguments of counsel permitted by the Court.

CITY OF HENDERSON’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

POINTS AND AUTHORITIES

FACTS

Michael Mead was cited by Henderson Police Officer Roy for speeding forty–seven miles per hour (47 mph) in a thirty–five miles per hour (35 mph) speed zone on Racetrack Road near Newport in Henderson on June 26, 2000. Mr. Mead claims that there was no authority for the City of Henderson to post an “invented numeric” speed limit of thirty–five miles per hour (35 mph) on the sign because no “speed limit study” was ever conducted in the area In question as required by the National Manual of Uniform Traffic Control Devices (MUTCD)

First of all, if MUTCD applies to this roadway, and the City is not conceding that it does, MUTCD (1998 ed.) § 2B–10 Speed Limit Sign (R2–1) states in pertinent part:

MUTCD: 2B–10 Speed Limit Sign, (R2–1)
      The Speed Limit sign shall display the limit established by law, or by regulation, after an engineering and traffic investigation has been made in accordance with established traffic engineering practices. The speed limits shown shall be in multiples of 5 miles per hour.
      In order to determine the proper numerical value for a speed zone on the basis of an engineering and traffic investigation the following factors should be considered:
1. Road surface characteristics, shoulder
condition, grade, alignment and sight distance.
2. The 85–percentile speed and pace speed.
3. Roadside development and Culture, and roadside friction.
4. Safe speed for curves or hazardous locations within the zone.
5. Parking practices and pedestrian activity.
6. Reported accident experience for a recent 12 month period.
(emphasis added)

MUTCD 2B–10 does not require a formal “speed Limit study;” it requires an engineering and traffic investigation performed in accordance with established traffic engineering practices which considered the six (6) factors enumerated above. There is no evidence presented by Mr. Mead that such an investigation was not done. In fact, Defendant Mead’s Exhibit 1 (attached hereto as City’s Exhibit A) indicates that an “engineering and traffic investigation” was conducted taking into account the six (6) factors in MUTCD § 2b-10 for determining the proper numerical value for a speed zone.

According to MUTCD, the City of Henderson did have authority to establish a speed limit of. Thirty–five miles per hour (35 mph) in the area in question.

Furthermore, MUTCD § 1A–4 states:
      The decision to use a particular device at a particular location should be made on the basis of an engineering study of the location. Thus, while this Manual provides standards for design and application of traffic control devices, the Manual is not a substitute for engineering judgment. It is the intent that the provisions of this Manual be standards for traffic control devices installation, but not a legal requirement for installation.
     Qualified engineers are needed to exercise the engineering judgment inherent in the selection of traffic control devices, just as they are needed to locate and design the roads and streets which the devices complement.
      Jurisdictions with responsibility for traffic control, that do not have qualified engineers on their staffs, should seek assistance from the State highway department, their county, a nearby large city, or a traffic consultant.
(emphasis added)

Thus, MUTCD, if applicable, sets the standards as guidelines for traffic control devices installation but is not a legal requirement. MUTCD recognizes both the guidelines it sets forth and the need for the exercise of engineering judgment. The City of Henderson has complied with the letter and spirit of MUTCD’s guidelines and exercised its engineering judgment in establishing the speed limit of thirty–five miles per hour (35–mph) in the area in question. Therefore, Defendant’s Motion to Dismiss should be dismissed, and trial allowed to proceed.

DATED this 7th day of June, 2001.
Respectfully submitted,
CITY OF HENDERSON, NEVADA SHAUNA M. HUGHES, City Attorney
By:
LIN T. NG, ESQ.
Deputy City Attorney
Nevada State Bar No. 02425
243 Water Street
Henderson, NV 89015

Original Motion to Dismiss.

Rebuttal to City of Henderson’s Opposition to Motion to Dismiss.

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