Best part about this is the Marty Markowitz smackdown.  Don’t miss it.

Tal Barzilai is wandering the streets somewhere in upper Westchester, devastated.

Requests fir reconsideration do not generally revive the statute of limitations on article 78 proceedings for obvious reasons.

The Court really goes out of its way to bitch-slap Marty Markowitz. Page 20 is a must-read.

Fantastic decision and excellent research on statute of limitations already expired per article 78 claim before this action commenced.  Curious how a pilot project came to be considered as temporary by petitioners vs. the meaning of an example of future projects.  In which case, all existing streets without bike lanes should be considered trial projects and subject to revision to bike-lane equipping.

And also curious about legal standing of unincorporated associations and how they can have legal standing in an article 78 action like this.  Shouldn’t all the members of the unincorporated associations be listed as petitioners?  Shouldn’t the associations have been incorporated as not-for-profits?

Should the DOT ask for fees and expenses to be awarded it by the Judge?

Waiting for the appeal to drop, but in the meantime,

CHAMPAGNE AT THE LANE ANYONE?

Bunch of nonsense, ducking the issue:  is there a vastly higher standard, longer time, and higher cost of review for street changes benefitting bicycles and pedestrians than there is for similar changes speeding motor vehicles?

The Court finds the paperwork didn’t get in on time as a way of ducking that issue.

I’m sure the paperwork for the appeal will get in on time.  And not one day early.

Took a stab at interpreting the significance of the “two event” passage in the decision in my twitter feed (http://twitter.com/#!/BicyclesOnly) before I saw this open thread.

To summarize, NBBL can in theory bring a timely challenge to things DoT did AFTER installing the bike lane, such as the post-implementation data analysis, and certain tweaks to the design (rumble strips, pedestrian islands, loading zones etc.).  But IMO NBBL’s strongest grounds for challenging the facility was that DoT failed to follow environmental review procedures before installing the facility.  That claim, and all other claims directed at installation, are now gone.  There is no enviro review requirement for the post-implementation acts of DoT that NBBL could now challenge.

Even if NBBL does try to challenge DoT’s post-installation acts, they have some additional procedural hurdles.  For example, has NBBL timely pursued its administrative remedies with respect to the DoT’s design tweaks in the fall of 2010? With respect to DoT’s  6-month data monitoring project, which ended in January 2011?

Even if NBBL can tee up the “merits” of a challenge to DoT’s post-implementation acts, they’ve got little chance of prevailing.   The court hearing that challenge would have to give great deference to DoT’s approach to the data monitoring and tweaking the design.  DoT’s decision to maintain the facility based on the crash and other data it collected, and the tweaks it has and will make in the design, would not be disturbed unless shown to be “irrational.”  In other words, a reasonable difference of opinion with DoT’s post-implementation study of and modification of the facility would not be enough to win–NBBL would have to show that no reasonable person would find DoT’s acts appropriate.  NBBL just can’t get there.

By resting his decision on limitations grounds, Judge Bunyan may have bestowed a hidden benefit on cyclists. A decision on the merits in favor of DoT would probably have enshrined  DoT’s authority as an agency to make decisions regarding bike facilities without  any meaningful consideration of the need for environmental review.  For the most part, I trust the current DoT to make bike facility decisions in that manner, but I’m not sure I will feel that way about a successor DoT administration.

Under yesterday’s decision, the path is clear for cycling advocates to challenge, on environmental impact grounds, any attempts to remove bike facilities by a successor administration (the challenges just have to be timely brought!) . And the current DoT’s excellent studies provide lots of data showing that removal of bike facilities would in fact result in increased injuries and deaths, so I think those challenges would be found to  have merit.

An excellent outcome.  Congratulations and thanks to the city’s lawyers, the local activists in Park Slope, Streetsblog for giving us a voice, and the cyclists all over the city who helped win this fight!

Peter M: No on both counts.  Incorporation is not a requirement for A78 standing, and attorneys’ fees are not going to get awarded in this type of case.