Tuesday, July 16, 2024

A bicyclist uses a separated lane on Garden Street, the line between West Cambridge and Neighborhood 9 in Cambridge, on April 4. (Photo: Marc Levy)

Lawyers for the City of Cambridge and a group of residents fighting the city’s deployment of bike lanes on Garden Street were back at Middlesex Superior Court on Thursday. Judge Maureen Hogan held a hearing on the city’s motion to dismiss the case in Aster v. Cambridge, the second of two similar cases against the city and which was filed in September 2022.

So far, the city has won at the preliminary injunction stage in both cases, at the motion-to-dismiss stage in the first case (Cambridge Streets for All v. Cambridge, filed in June 2022), as well in various appeals court skirmishes along the way, including an appeal of the preliminary injunction denial in the Cambridge Streets for All case.

If the city’s motion were to be denied, the case would likely be decided without a trial, based on the facts submitted by both sides – what the court calls “summary judgment.”

The appeals court views both cases as sufficiently related that it has agreed to hold off on hearing the appeal of the Cambridge Streets for All case until after the results of the motion to dismiss in the Aster case. Last week’s superior court hearing was scheduled for June before Judge William Bloomer, but was pushed back to October after the attorney for the plaintiffs in both cases, Ira Zaleznik, had an accident and needed surgery. Hogan, who now has the case, is the same judge who denied the preliminary injunction in this case and allowed the motion to dismiss in the first case.

Hogan observed that the record before her – the facts of the case – might be more developed than it was in last year. There was really not much different, though, so arguments were much the same, and lasted about 40 minutes.

Cambridges position

The city’s argument was presented by Elliott Veloso, the No. 2 attorney in the Cambridge Law Department. Veloso began by arguing that the “10-taxpayer statute,” the law allowing the Aster plaintiffs to challenge a city’s expenditure of funds, requires the challenge to be made before the funds were expended, and the city has been constructing bike lanes for decades – so the plaintiffs don’t have standing to challenge the city. Courts have generally agreed with this position.

Veloso’s second argument was that the city’s recently reconstituted Traffic Board can hear appeals only of “rules and regulations,” and a decision to install a “traffic control device” such as a painted bicycle lane is not such a rule. Veloso added that if citizens were allowed to challenge their street configurations in court, it would be entirely unworkable for the city to manage its streets, and traffic enforcement would devolve into a piecemeal mess.

Plaintiffsargument

Zaleznik, an attorney with Lawson & Weitzen representing the 20 plaintiffs led by Madeline Aster, argued that a bike lane is not “merely a traffic control device,” and instead is a “configuration of streets” and so therefore must be a rule or regulation.

Taking the example of Garden Street’s conversion from two-way to one-way, Zaleznik said, “The sign that says ‘Do Not Enter’ or ‘One Way’: That’s the traffic control device. The fact that a street is changed from two-way to a one-way street is a traffic regulation. And if I attempted to go the wrong way up Garden Street at this point, I would be given a ticket by the Cambridge police, if they were there to enforce the provision. It’s a rule; it’s a regulation; it’s subject to enforcement; that’s what a rule or regulation is.”

Zaleznik told Hogan that even if a two-way street were converted to a one-way street without bike lanes, it would still be a regulation subject to appeal to the city’s traffic board.

Months for a decision

Hogan did not rule from the bench, and is expected to issue a written ruling within the next few months. Last time around, the hearing was in November and the decision came out in March.

When Hogan rules, the cases won’t be over. If the city prevails, as it has in the prior three rulings in the two cases, the Cambridge Streets for All plaintiffs’ appeal may proceed in the Appeals Court. If the plaintiffs successfully challenge the city’s motion to dismiss, the case would proceed to summary judgment and possibly trial. Either way, it could be months or years before the final answer.

The twenty plaintiffs in the case are Aster, Barbara Dollar, Neil Goodwin, Laura Palumbo Hanson, Marjorie Hilton, Alex Keysarr, Katiti Kironde, Frank Logerfo, Michael Massagli, Stephan McCauley, Linda Moussouris, Richard Pratt, Cristina Paul, Gus Rancatore, Belinda Rathbone, Henry Shapiro, Deepak Singh, Andrew Szentgyorgyi, Merry White and Pam Winters.

City Council candidates Joan Pickett and John Hanratty are associated with Cambridge Streets for All, the organizational plaintiff in the first case.