Citation ID. NO. B-212976

COMES NOW, MICHAEL L. MEAD, in pro per, and files this Rebuttal to the Opposition to Motion to Dismiss. This rebuttal is made and based upon the pleadings and papers on file herein, along with the following Points and Authorities and any arguments permitted by the Court.

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

INTRODUCTION

The City’s opposition to the Defendant’s Motion to Dismiss has 5 points:

1.   They DO NOT concede that they must comply with state law NRS 484.781, or the supremacy of federal law adopted in this statute, or the fact that both laws contain conditional use authorization clauses that mandate that ALL devices SHALL comply;

2.    The City asserts ABSENT a mandated finding of fact (engineering study), they have met the requirements for it to legally place an invented numeric on this federal device. To support its position they assert the terms “Investigation” and “Study” have distinct and separate meanings, when in national accepted practices they are synonymous; and it is also mandated that it “shall be documented”;

3.    In a further digression, they assert that all 6 components of the warrant were complied with, ABSENT any record of what each of the 6 components findings are for that particular section of highway, including the measured 85th percentile of free–flowing speed, an engineering study’s critical component... the measurement of what the traffic being regulated is actually doing. The basis that all subsequent decisions must be based on. Without such a written finding applying “only” nationally accepted practices, they fail to meet this device’s (R2–1, Speed Limit Sign) mandated condition precedent and the limit is unlawfully posted;

4.   The City asserts there is “no proof” that and engineering study wasn’t done, when its exhibit “A” clearly states there is no study on file or knowledge of one being done. Furthermore in another admission of non–compliance, the letter makes it perfectly clear that Public Works Department knows what a study is... and proclaims that even if they followed the law as cited in the AG’s opinion (engineering study is required), they could have posted the limit lower. This is not “if” they complied, it is “did” they and they haven’t complied with the law;

5.   Finally, relying solely on a single sentence in the MUTCD (1988 edition), taken in every respect out of context, they assert the MUTCD is not a legal requirement. This assertion pays no heed to the fact that state law NRS 848.781, independently, makes it a LEGAL REQUIREMENT that ALL devices used in the state SHALL comply.

POINTS AND AUTHORITIES

FACTS

1.   The City DOES NOT concede they must follow NRS 484.781 and its adopted Title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations (CFR), Part 655.601 through 655.603, and its traffic control device standards specified in the National MUTCD.

City’s Opposition Brief, page 2, line 12
      “First of all, if MUTCD applies to this roadway, and the City is not conceding that it does,”

The following laws mandate otherwise. Nevada State Law:

NRS 484.781 Adoption of manual and specifications for devices for control of traffic by department of transportation.
      “2. All devices used by local authorities or by the department of transportation shall conform with the manual and specifications adopted by the department.”
(emphases added)

Federal Law:

Source: http://mutcd.fhwa.dot.gov/kno-faq.htm
What is the legal status of the MUTCD?
      The MUTCD is adopted by reference in accordance with title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations, Part 655.603, and is approved as the national standard for designing, applying, and planning traffic control devices. (defendant’s exhibit #2)

Does this mean that all traffic control devices must comply with MUTCD standards?
      Yes, all traffic control devices nationwide must conform to the MUTCD. There are no exceptions.
(emphases added)

Section 1A.02 Principles of Traffic Control Devices (Current)
Support:
      This Manual contains the basic principles that govern the design and use of traffic control devices for all streets and highways open to public travel regardless of type or class or the public agency having jurisdiction. This Manual’s text specifies the restriction on the use of a device if it is intended for limited application or for a specific system. It is important that these principles be given primary consideration in the selection and application of each device.
(emphases added)

MUTCD Section 1A.07 Responsibility for Traffic Control Devices (Current)
Standard:
      The responsibility for the design, placement, operation, maintenance, and uniformity of traffic control devices shall rest with the public agency or the official having jurisdiction. 23 CFR 655.603 adopts the Manual on Uniform Traffic Control Devices as the national standard for all traffic control devices installed on any street, highway, or bikeway open to public travel. When a State or other Federal agency manual or supplement is required, they shall be in substantial conformance with the national Manual on Uniform Traffic Control Devices. 23 CFR 655.603 also states that traffic control devices on all streets and highways open to public travel in each State shall be in substantial conformance with standards issued or endorsed by the Federal Highway Administrator.
Support:
      The "Uniform Vehicle Code" (see Section 1A.11) has the following provision in Section 15-104 for the adoption of a uniform Manual:
     "(a)The [State Highway Agency] shall adopt a manual and specification for a uniform system of traffic control devices consistent with the provisions of this code for use upon highways within this State. Such uniform system shall correlate with and so far as possible conform to the system set forth in the most recent edition of the Manual on Uniform Traffic Control Devices for Streets and Highways, and other standards issued or endorsed by the Federal Highway Administrator."
(required language as adopted in NRS 484.781)

The law couldn’t be clearer, the MUTCD is the law.

2. The City asserts ABSENT a mandated finding of fact (engineering study), they have met the requirements for it to legally place an invented numeric on this federal device. To support its position, they assert the synonymous terms “Investigation” and “Study” have distinct and separate meanings.

1988 Edition of MUTCD
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.

Millennium Edition of MUTCD (Current)
Section 2B.11 Speed Limit Sign (R2–1)
Standard:
      After an engineering study has been made in accordance with established traffic engineering practices, the Speed Limit (R2–1) sign shall display the limit established by law, ordinance, regulation, or as adopted by the authorized agency. The speed limits shown shall be in multiples of 10 km/h (5 mph).

MUTCD definition of terms (Current)
Engineering Study – the comprehensive analysis and evaluation of available pertinent information, and the application of appropriate principles, Standards, Guidance, and practices as contained in this Manual and other sources, for the purpose of deciding upon the applicability, design, operation, or installation of a traffic control device. An engineering study shall be performed by an engineer, or by an individual working under the supervision of an engineer, through the application of procedures and criteria established by the engineer. An engineering study shall be documented.

As the 2 MUTCD sections show, the terms “Investigation” and “Study” are used synonymously. And an engineering study SHALL be the method used to establish the numeric value of a posted limit, and it is a written document. A posted limit established contrary to state and federal mandates, as is the limit the defendant is charged with violating — is clearly without authority, illegal.

3. The City asserts that all 6 components of the warrant were complied with, ABSENT any record of what each of the 6 components findings were for that particular section of highway, including the measured 85th percentile of free–flowing speed, an engineering study’s critical component... the measurement of what the traffic being regulated is actually doing. The finding of fact that all subsequent decisions must be based on. Without such a written finding applying “only” nationally accepted practices, they fail to meet this device’s (R2–1, Speed Limit Sign) mandated condition precedent and the limit is unlawfully posted.

“MUTCD 2B–10, second paragraph (1988 edition)”
      “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)”

City’s Opposition Brief, page 3, line 3
      “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.”

The city points to the second paragraph above in the 1988 section 2B–10 MUTCD were it uses the phrase “on the basis of an engineering and traffic investigation” to list those items that are contained in an investigation. Nevertheless, “established traffic engineering practices” are those outlined, accepted or recommended by AASHTO, FHWA and the ITE. Here are a few examples;

FHWA (Federal Highway Administration) (1985, reaffirmed 1996)
Report No. FHWA/RD–85/096 Technical Summary, “Synthesis of Speed Zoning Practice” which states:
      “Based on the best available evidence, the speed limit should be set at the speed driven by 85 to 90 percent of the free–moving vehicles rounded up to the next 5 mph increment. This method results in speed limits that are not only acceptable to a majority of the motorist, but also fall within the speed range where accident risk is lowest. Allowing a 5 mph tolerance, enforcement would be targeted at drivers who are clearly at risk.
      No other factors need to be considered since they are reflected in the drivers speed choice. If there are unusual hazards not readily apparent to drivers, then a warning sign could be installed giving the nature of the hazard and, if necessary, supplemented with a realistic advisory speed."

AASHTO: (1969)
A 1969 “Resolution of the annual meeting of the American Association of State Highway Officials” states:
      “The review of existing practices revealed that most of the member departments use, primarily, the 85th percentile speed. Some agencies use the 90th percentile speed, and of secondary consideration are such factors as design speed, geometric characteristics, accident experience, test run speed, pace, traffic volumes, development along the roadway, frequency of intersections, etc.”
      “On the basis of the forgoing review, the Subcommittee on Speed Zoning recommends to the AASHTO Operating Committee on Traffic for consideration as an AASHTO Policy on Speed Zoning that:
      The 85th percentile speed is to be given primary consideration in speed zones below 50 miles per hour, and the 90th percentile speed is to be given primary consideration in establishing speed zones of 50 miles per hour or above. To achieve the optimum in safety, it is desirable to secure a speed distribution with a skewness index approaching unity.”

Institute Of Transportation Engineers (ITE); (1991)
ITE Committee 4M-25, Speed Zone Guidelines:
      “Thus, the overriding basis (from a safety perspective) for speed zoning should be that the creation of the zone, and the speed limit posted, results in an increase in the percentage of motorists driving at or near the 85th percentile speed.”
      “A third rationale is the need for consistency between the speed limit and other traffic control devices. Signal timing and sight distance requirements, for example, are based on the prevailing speed. If these values are based on a speed limit that does not reflect the prevailing speed of traffic, safety may be compromised.”
      “2. The speed limit within a speed zone shall be set at the nearest 5 mph increment to the 85th percentile of free flowing traffic or the upper limit of the pace of the 10 mph pace.” “In no case should the speed limit be set below the 67th percentile speed of free flowing traffic.”

Chapter 8-13, California State Traffic Manual: (1970’s)
      “ Thus, the overriding basis (from a safety perspective) for speed zoning should be that the creation of the zone, and the speed limit posted, results in an increase in the percentage of motorists driving at or near the 85th percentile speed.”
      “Speed limits established on the basis of the 85th percentile conform to the consensus of those who drive highways as to what speed is reasonable and prudent, and are not dependant on the judgement of one or a few.”
      “Further studies have shown that establishing a speed limit at less than the 85th percentile (Critical Speed) generally results in an increase in accident rates.”

The current nationally accepted practices are consistent with prior practices above, and are now codified in the current MUTCD.

Section 2B.11 Speed Limit Sign (R2–1)
Guidance:
      “No more than three speed limits should be displayed on any one Speed Limit sign or assembly.”
      “When a speed limit is to be posted, it should be the 85th-percentile speed of free-flowing traffic, rounded up to the nearest 10 km/h (5 mph) increment. ”

In this case they assert that no study is required, and as recently as April of 2001 the city engineer raised a Henderson speed limit based on the findings of an engineering study. The importance of an engineering study is of common knowledge and standard practice in engineering terms.

Wednesday, April 25, 2001

ROAD WARRIOR Q&A: Speed Limit Rising

Sun City Anthem golf cart driver worried about safety
By MICHAEL SQUIRES
REVIEW–JOURNAL

      “John Bartels, city traffic engineer for Henderson who approved the increase, said traffic studies show the 45 mph speed limit is proper for the speed vehicles were traveling on those roads. ”
      “ When you look at most main arterials, that’s the speed limit,” he said. “It wouldn’t make any difference if you posted it at 35 mph, they’d still go the same speed.”

The city has not produced a study that reflects current traffic conditions. They claim that the 6 components required have been met, yet they can not be substantiated it because there is no required written documentation. Articulation on which of the nationally excepted practices have been applied, and how. Moreover, no engineering judgment can be rendered when the stated key factor in all standards has not been determined — the starting point of the process, determining the current 85th percentile. Therefore City’s argument also fails this test.

4.   The City asserts there is “no proof” that and engineering study wasn’t done, when its exhibit “A” clearly states there is no study on file or knowledge of one being done, as cited in the Defendant’s Motion to Dismiss. Furthermore in another admission of non–compliance, the letter makes it perfectly clear that Public Works Department knows what a study is... and proclaims that even if they followed the law as cited in the AG’s opinion (engineering study is required), they could have posted the limit lower. This is not “if” they complied, it is “did”they and they haven’t complied with the law.

In support of this here is the last paragraph in the AG’s opinion ( defendant’s exhibit #3)

OPINION NO. 95-21 SPEED LIMIT; LOCAL GOVERNMENT
      “It should also be noted that in order for speed limits to be enforceable, due process requires that the public be given notice that a speed limit has been set at a particular level in accordance with statutory requirements. In this instance, a public meeting was held where the issue was discussed and statutory requirements were followed and an engineering study was performed pursuant to the MUTCD. Due process further requires that the speed limit be rationally related to a legitimate governmental interest. The governmental interest involved here would be public safety.”

The second assertion relying on the CONCLUSION of the AG’s opinion is misguided and the opinion is wrong. Yes the MUTCD is state law and it requires an engineering study; however, the language in the MUTCD and controlling federal laws categorically rejects the notion that a political body can disregard the mandate that it be posted “in accordance with established traffic engineering practices”. If it is there, we ask the City or AG to indicate where. The AG’s opinion fails to address or cite federal authority, only abstract other cases or state laws. Federal law says throughout “regardless of type or class or the public agency having jurisdiction“ and “all traffic control devices nationwide must conform to the MUTCD. There are no exceptions”. Federal law is superior to state law.

CONCLUSION
      “In the situation presented here, the City Council set a speed limit of 30 miles per hour although the traffic engineer recommended a speed of 35 miles per hour. The traffic engineer properly considered the factors required in the MUTCD. State statutes and case law give discretion in setting speed limits to the City Council and the MUTCD also allows for engineering judgment and does not require that a local authority set a speed limit strictly according to the engineer’s recommendation. It cannot be said under the facts presented that the City Council abused its discretion in deciding that the speed limit should be 30 miles per hour, rather than 35 miles per hour.”

Therefore, the AG wrongly asserted state laws allowed local governments discretion to disregard engineering standards and findings. For a limit to be legal it must be based on an engineering finding – period. A political entity can not make either an engineering judgment, or an engineering finding of fact, this is in the dominion of a professional licensed engineer applying a national engineering standard, and only those limits that are adopted in full compliance with the MUTCD conditions precedent are legal. Local political conjecture ordering a device to be used contrary to the engineers finding, on its face is unlawful. And a local or state political entity can not grant itself supremacy over federal law.

The defendant accepted the Henderson Public Works response at face value. If a study is produced, the defendant will examine its merits in accordance with the law. Absent the production of such a document, no study exists – therefore the limit is illegally posted.

5.   Finally, relying solely on a single sentence in the MUTCD (1988 edition), taken in every respect out of context, they assert the MUTCD is not a legal requirement. This assertion pays no heed to the fact that state law NRS 848.781, independently, makes it a LEGAL REQUIREMENT that ALL devices used in the state SHALL comply;

“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.”
(emphasis added)

City’s Opposition Brief, page 3, line 3
      “Thus, MUTCD, if applicable, sets the standards as guidelines for traffic control devices installation but is not a legal requirement.”

This section addresses a common problem engineers are confronted with. In this example we will use a warrant for the installation of a stop sign.

Definition: Installation
      NOUN: 1a. The act of installing. b. The state of being installed.

A person may request that a traffic control device be installed at a location that meets the minimum warrant requirement found in the MUTCD, and subsequently demands that it be installed. Applying engineering judgment based on other location information, the engineer may chose not to install the device. Nevertheless, if installed, it must meet all the MUTCD conditions precedent.

Again, under Nevada State Law:

NRS 484.781 Adoption of manual and specifications for devices for control of traffic by department of transportation.
      “2. All devices used by local authorities or by the department of transportation shall conform with the manual and specifications adopted by the department.’
(emphases added)

The meaning and intent is clear, the MUTCD identified here as the “MANUAL” is a legal requirement for installation that must be complied with. The federal regulations in Title 23 likewise contains language to the same effect, mandatory. Therefore the city fails with this argument too.

WHEREFORE for all the foregoing reasons, and each of them individually, defendant moves that the Motion to Dismiss be granted with prejudice.

Signed, ___________________________
            Michael L. Mead, Defendant

Attorney in pro per, Date __________

Original Motion to Dismiss.

City of Henderson’s Opposition to Motion to Dismiss.

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