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Judge Voids Ban on Bicycles On 3 Avenues
New York Times, September 10, 1987
By Dennis Hevesi
The New York City order to ban bicyclists from certain major midtown arteries
during much of the business day was issued without proper public notice and
cannot be enforced, a State Supreme Court justice ruled yesterday.
The 90-day ban, announced by Mayor Koch in July as an experiment aimed at
reducing accidents caused by bicycle messengers. would have prohibited all
cyclists from riding on Park, Madison and Fifth Avenues between 31st and
59th Streets from 10 am to 4pm on weekdays. The prohibition was to have gone
into effect Aug. 31 but was delayed by the Appellate Division of St ate Supreme
Court.
Nancy Cooper, president of the Association of Messenger Services, which sued
the city, called the ruling a major victory. not just for the •40 companies
the association represents, but also for "the 5000 bike messengers and the
public, as well"'
Mr. Koch. however, said the victory was short-lived and foolish. He indicated
that the city would either begin the notification process, appeal the decision
or both.
In his 11 page opinion. Justice Edward H. Lehner of Manhattan said, "The
court concludes that because it was not enacted in the form of a regulation,
with publication and notice as mandated by the New York City Charter, the
ban is invalid."
"Here, a decision was made." he wrote, "to regulate conduct affecting a significant
segment of the population. Although the public was informally notified of
the ban approximately a month before the effective date of the order, legal
enactment required its formal adoption as a regulation. The formalities for
such adoption not having been complied with, the ban is unenforceable."
An assistant corporation counsel who helped prepare the case, Phyllis Arnold,
said the city had argued that the Charter provided "two alternative methods
for the regulation of traffic - the promulgation of regulations and
the pasting of signs." "We argued," she added, "that the Charter authorized
the imposition of the ban by the posting of signs, without the need for publication
and filing." The lawyer for the Association of
Messenger Services, Stuart Gruskin, said: "The judge ruled that the city
can't do something like this without getting input from the people. They
forgot that this is a democracy.
"We argued two things. That the procedures which should have been followed
weren't, but also that, even if it' was illegally adopted, it made no sense.
"Let's start with the assumption that, there is a problem to be solved, and
everyone admits there is. You don't solve a problem of overcrowding
by putting the same number of people in less space.
"Banning the bicycles will not cause them to vanish. If the ban went into
effect, there would be a lot more bicycles on Broadway, Sixth Avenue, Lexington
Avenue and Third Avenue, as well as the already congested crosstown streets.
So, they were going to shift the problem."
Mayor Koch said, however, that the court finding was based on "process, not
substance."
He said Transportation Commissioner Ross Sandier and Corporation Counsel
Peter L. Zimroth believed the ban did not require public hearings.
"We don't want judges to be running the City of New York or its agencies,"
the Mayor said.
Mr. Zimroth, he said, is considering whether the city should "go dawn two
tracks." One would jnvolve starting the process of hearings "and cure the
process of hearings "and cure the process impediment." The second would be
to appeal the decision.
'So this victory for the bike riders, in my judgment, is very short-lived
and foolish," the Mayor said. He said his only objection to the actions of
the messengers was that they disrupted traffic during demonstrations against
the ban during the summer.
"I was angry with the bike riders for taking the law into their own hands,"
Mr. Koch said, "not for appealing the law to a court."
Mr. Zimroth said pursuing an appeal and the notification were "not necessarily
inconsistent."
"'Just because we start the procedure does not mean that we agree that it
was required," he said. "But appeals can take a long time, and it might be
more prudent, if we want to have this rule in effect, to simply to get the
process started."
A decision will be made in a few days, he said, in consultation with Mr.
Sandier.
Ms. Cooper said her group would "welcome an open dialogue between the industry
and the city to solve the problems that do exist."
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