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HomeMy WebLinkAboutSS5 - Ocean Front Boardwalk Safety Discussion - CorrespondenceReceived After Agenda Printed June 28, 2016 Item No. SS5 From: City Clerk's Office Sent: Monday, June 27, 2016 11:02 AM To: Mulvey, Jennifer; Rieff, Kim Subject: FW: Peninsula Traffic & Ocean Front Walk From: Kiff, Dave Sent: Monday, June 27, 2016 11:02:17 AM (UTC -08:00) Pacific Time (US & Canada) To: City Clerk's Office Subject: FW: Peninsula Traffic & Ocean Front Walk For the record. From: Brian H Ouzounian[mailto:brian.ocicd)sbcglobal.net] Sent: Monday, June 27, 2016 10:38 AM To: Dept - City Council Cc: Kiff, Dave Subject: Peninsula Traffic & Ocean Front Walk Dear Mayor Dixon and City Council Members. i am sending this for tomorrow's study session. Here are the concerns we have as a peninsula community and some recommendations for your consideration. Existing Conditions: -Rolling devices of all types are on the increase both by rental vendors and by the visiting public; -other cities have addressed this interest and have taken proactive measures to accommodate the rolling public movement versus auto travel, which is the trend; -There is no visible enforcement, at least easterly from Newport Pier to E street, on the ocean Front walkway (OFw); -Routine speeding by the rolling public is on the increase, especially electric assisted bikes; -Hazards continue as the rolling public ride on sidewalks and residents try to exit their garages east of Main Street to the end of the peninsula; -skateboard riders continue to ignore the posted sign prohibition; -curries are always on the walkway and consider the ramp at E street the thrill of their rental experience, screaming like on a roller coaster (ya, they even put up their arms): -The mixing of the rolling public into auto traffic at E street continues unabated and in a brazen fashion. Now that Junior Lifeguards have started, these are "hold your breath" moments and accidents waiting to happen at this intersection; -The "No u -Turn" signs on Balboa Blvd and E street are ignored and autos and delivery trucks and school buses make u -turns regardless, mixing it up with the rolling public at the intersection; -curries are a hazard when on Balboa Blvd and cause traffic incursions and obstacles to free flow; -All along Balboa Blvd and especially Marina Park, there exists massive cross -traffic incursions with the rolling public darting into east and westbound boulevard traffic and they do not get off their devices when crossing; -Balboa Blvd is essentially one lane when the rolling public take to the streets.Bikes on Balboa Blvd create traffic dangers and egress problems as autos have to stay 3 feet away. This reduces the only egress for the public to ONE LANE; residents cannot egress the peninsula without massive delays; -The obvious destination of much of the rolling public (mostly visitors) is the wedge. staff continues to ignore residents'(and this writer's) requests to meet at the site to convey concerns, which is quite irresponsible; -Based upon the study session a month or so ago, the public learned that there is 15 feet of roadway easement in front of ocean front homes at and east of G street. -The Master Bicycle Plan (MBP) failed to address Peninsula Bike travel, the largest area for bike travel in the city, despite this writer's request; Recommendations: -More enforcement to the easterly end of the OFW; -The one productive solar powered speedometer sign, now on the OFW, is great and more need installation; -The "rolling public" needs to be directed off the streets and onto the OFW; -if we have accommodated visitors with a Marina Park, why not accommodate them.with a parking venue and a safe and scenic pathway to the wedge? -The MBP needs to be amended and a bicycle circulation plan developed for the Peninsula to get,visitors to a parking venue off the Peninsula and direct them via their devices onto an OFW that accommodates their interest and destinations; this includes some type of change to either add a path for the rolling public, widen the existing path, prohibit the rental of surries and other incompatible devices, and extending the path to the wedge. I thank you in advance for your consideration of the above. Best Regards, Brian Received After Agenda Printed June 28, 2016 Item No. SS5 From: City Clerk's Office Sent: Monday, June 27, 2016 4:21 PM To: Mulvey, Jennifer; Rieff, Kim Subject: FW: Possible Infrastructure Changes to the Boardwalk From: Kiff, Dave Sent: Monday, June 27, 2016 4:20:44 PM (UTC -08:00) Pacific Time (US & Canada) To: City Clerk's Office Subject: FW: Possible Infrastructure Changes to the Boardwalk From: Finnigan, Tara Sent: Monday, June 27, 2016 4:20 PM To: Dept - City Council Subject: FW: Possible Infrastructure Changes to the Boardwalk From: Jack Tingley [ma iIto: jack@beachsports.orgl Sent: Monday, June 27, 2016 9:37 AM To: Finnigan, Tara Cc: barbaratingley@yahoo.com Subject: RE: Possible Infrastructure Changes to the Boardwalk Tara, From: Jack Tingley, 441 Vista Roma, Newport Beach, CA 92660. Retired Los Angeles County Ocean Lifeguard, Business Owner and Former Newport Beach Parks Recreation and Beaches Commissioner. I am unable to attend the Study Session regarding the Boardwalk and the crowding problems that plague this area. What is the best way for the letter below to be either read at the Study Session or distributed to our City Council, City Manager and appropriate staff? Thanks for your help. Possible Infrastructure Changes are the best way to solve the large liability and crowding problem that plagues the Boardwalk. The crowding is caused by users who are unaware if speed limits, walking against traffic, don't look at the striping and signs, walk in the middle of the Boardwalk, young children riding or walking not knowing the rules, or as simple of three or four people walking together shoulder to shoulder blocking the Boardwalk. This makes it difficult to for bicycles to pass safely and causes frustration and danger for all. I have viewed all these occurrences year round. It is important to note that the statistics reported by the NBPD are reported incidents. I have viewed more bike verses pedestrians accidents then are being reported. I support two proposals. Creating a separate Bicycle Only Boardwalk closest to the water from 36th Street to E Street and improve the Boardwalk entrance and exit at E Street. Widening the Boardwalk from 36th Street to E Street and improve the Boardwalk entrance and exit at E Street. I recommend City Staff use the Manhattan Beach "Strand" as a perfect example. Two parallel "Boardwalks " or as named in Manhattan Beach the "Strand" that have successfully been in place since the 1970's. For 26 years I lived in Manhattan Beach/Redondo Beach riding my bicycle on the Strand and did not view the separate Bicycle Path as a speedway only as a solution to a crowded one lane Strand. I have lived in Newport Beach for 11 years riding the Boardwalk. We have to look to the future as the problem of Boardwalk crowding will not solve itself. With California Coastal Commission and State Lands Commission being the primary review and permitting agencies for any changes to the beach or Ocean Front Walk we must act now. In addition, the land is Tidelands and as a result requiring public property access and avaliabe use. The current Boardwalk does not provide adequate access and avaliabe use. Thanks for listening. Jack Jack Tingley 310-462-7301 jack(a beachsports.org From: Finnigan, Tara[mailto:TFinniganCabnewportbeachca.gov] Sent: Friday, June 24, 2016 4:32 PM Subject: Tuesday's Council Study Session includes July 4, Boardwalk Safety and More Hello — The June 28 City Council Study Session includes a few items that may be of particular interest to West Newport / Balboa Peninsula residents and business owners. You can find the meeting agenda here. First, representatives from the City's Police Department and Recreation Department will give a brief presentation on the special events and enforcement activities planned for this year's Fourth of July Holiday. You can also find information on the holiday plans on the City website at www.newportbeachca.gov/iulv4. Next on the agenda, I'll talk to the Council about residents' concerns over safety along the Ocean Front Walk (boardwalk) and ask for direction on some potential options for moving forward. Reps from the Police, Public Works and City Attorney's Office will be there to help answer any questions. After that discussion concludes, representatives from the County of Orange will talk about the County's upcoming Lower Santa Ana River Dredging/Sand Management Project. The Study Session will begin at 5 p.m. in the Council Chambers at 100 Civic Center Drive. The meeting will begin with the Council recognizing some of public safety personnel and a couple of visitors for their roles in two life-saving rescues this year. You are welcome to attend and speak to the Council directly about these or other items. If you can't attend the meeting and/or want to communicate with the City Council directly, you can email your comments to CityCouncil(aD-newportbeachca.gov. You can also watch the meeting on your computer here or on the City's government channel, NBTV. NBTV can be found by Newport Beach Time Warner Cable customers on channel 3 and Cox Communications customers on channel 852. Thank you! -Tara Tara Finnigan, APR Assistant to the City Manager / Public Information Manager City of Newport Beach 949-644-3035 tfinnigan(aD,newportbeachca.gov Received After Agenda Printed June 28, 2016 Item No. SS5 From: Finnigan, Tara Sent: Tuesday, June 28, 2016 10:28 AM To: Brown, Leilani Subject: FW: thanks for emailer council study sessionwith segways ( sic ) on tap important to m to add city sidewalks to off limit as with bicycle heads upto city clerk if subject is to be codified best spell it SEGuE as " eye talians do! more at 9493785906 L tha -----Original Message ----- From: Tom Hyans [mailto:tomhvans@gmail.comj Sent: Saturday, June 25, 2016 11:59 AM To: Finnigan, Tara Subject: thanks for emailer council study sessionwith segways ( sic ) on tap important to m to add city sidewalks to off limit as with bicycle heads upto city clerk if subject is to be codified best spell it SEGuE as " eye talians do! more at 9493785906 L thaN... Sent from my Pad Received After Agenda Printed June 28, 2016 Item No. SS5 Re. Boardwalk Safety- City Council Study Session of June 28,2016: PLEASE DISTRIBUTE TO THE CITY COUNCIL MEMBERS AND ENTER INTO THE PUBLIC RECORD Mayor Dixon and Members of the City Council: Other members of the community and I attended yesterday's session whereby staff presented recommendations regarding revised ordinances and regulations associated with the Oceanfront Walk "Boardwalk". We again commend the Staff for the quality of its initial analysis and development of recommendations, and appreciate the effort. At the session, there was testimony from a number of residents concerning Public Safety issues associated with the current uses and regulatory framework associated with the Boardwalk.At the conclusion of the session, the Mayor provided a summary of direction to staff in regard to development of a revised framework for allowed uses and their operation, regulation on the Boardwalk.ln addition, there was testimony and some general direction associated with consideration of future expansion of the "boardwalk infrastructure". I conferred with other residents ,including community associations, and we agree that the direction did not appear to be responsive to the residents' concerns and requests. The following statement summary serves to both clarify and confirm my intention and testimony, and that of my neighbors. • The residents and many visitors believe that the addition of multiple types of motorized vehicles onto the narrow 12 ft two-way boardwalk, in combination with inadequate regulation, creates a Significant Public Safety hazard. This adversely impacts the safety and enjoyment of the beachfront by both residents and visitors to Newport Beach: • The issue of Boardwalk Safety is of increasing concern to residents and visitors who use the Walk for its intended purpose • The beach and oceanfront boardwalk are ASSETS that it is in the best interests of the residents, and City to preserve , in terms of both safety and enjoyment of their use • The reported accidents and incidents do not fully reflect the frequency or intensity of Unsafe experiences, risks and incidents • Statutory and legal framework clearly indicate that Cities CAN regulate the use of all vehicles where there is a Legitimate Safety concern. (We agree that the City should also accommodate individuals who have Legitimate Physical Handicaps which are formally documented as such( Drivers licenses, identity cards, wheelchairs. • It is within the authority ,and is the responsibility,of the City to consider its particular physical site characteristics and constraints, and characteristics and volume of use, along with the adjacent uses including residences, schools and the like • The regulation/prohibition of individual and commercial operators claiming to be "mobility impaired" is necessary to assure the safety of all of the public including the truly physically handicapped in their use of the Boardwalk. There are a number of uses which are available to residents and visitors (the Public) which do not create inherent ,perpetual Safety risk. These include: walking and jogging, bicycling, rollerblading/skating. Commercial merchants have demonstrated that these are popular, and they can generate revenues from this type of rental. It is understood that any equipment needs to be operated safely and within Speed parameters appropriate for this type of path. • To preserve the intent, safety and enjoyment of the Boardwalk experience, I and other members of the community request that Council direct staff to: Take action to clarify and consolidate Municipal ordinances relating to definition of allowed and prohibited uses and regulation of operation which may conform with state regulations ,and also satisfactorily address the legitimate safety concerns expressed by the public., with regard to the City's physical, natural environment, and demographic framework of and surrounding the Boardwalk/Oceanfront Walk 2. Prohibit the operation of ALL motorized vehicles on the Boardwalk. This should include recreational equipment having capability to propel by electric, gas or battery means, on the boardwalk( with exception of Wheelchairs, which are legitimate physically handicapped "vehicles" of transport). 3. Prohibit the operation of Surreys along the Boardwalk 4. Provide clear, Universal symbols on Signage so that there is not Confusion as to permitted and prohibited Uses, and parameters for their operation and safety compliance 5. Provide clear Enforcement policy and direction so that Speed and other unsafe aspects of operation are regulated (including citations and fines), and that there is regulation supporting Public Safety and Enjoyment of the Boardwalk 6. Expansion of the Boardwalk "physical infrastructure", enlarging, adding or extending the current footprint, is not a concept that Residents support We appreciate the City Counci's careful consideration of its citizens' Voice , and responsiveness that furthers a safe, enjoyable Boardwalk experience for the community and visitors alike. Thank you. Denys H. Oberman Resident at Oceanfront Walk and Community Stakeholder Cc: Residents and Community Associations of Central Penninsula and West Newport Agenda Item No. SS5 June 28, 2016 Received After Agenda Printed June 28, 2016 Item No. SS5 Use / Device TExpressly Prohibited on Boardwalk in NBMC People Powered Surrey Cycles 12.56.040 - any device with seating for one or more Rollerskaters persons which is propelled by human power Motorized Skateboard through a system of peddles, belts, chains or gears, Motorized Tricycle and which has four wheels Pedicabs 12.56.040 - any device with seating for one or more Subsequent Technology... persons which is propelled by human power through a system of peddles, belts, chains or gears, and which has three wheels Skateboards 12.57.020 & Reso 2012-15 - all wheeled objects, coasters, scooters, toys, conveyances, or similar devices used for transportation or sport which are propelled by human power and which are not classified as bicycles Non -People Powered Motorized Scooters 12.54.025 - no express definition of motorized scooters, but state law defines them as two -wheeled device with handlebars, a floorboard designed to be stood upon while riding and an electric motor (CVC § 407.5(a) -(b)) Motorcycles 12.64.030 - any motor vehicle other than a tractor having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground and weighing less than one thousand five hundred (1,500) pounds Motor Driven Cycles 12.64.030 - any motorcycle, including every motor scooter or minibike, with a motor which produces not to exceed five horsepower, and every bicycle with motor attached Other Motor Vehicles 12.64.030 - undefined Use / Device Regulated on Boardwalk in NBMC Bicycles 12.54.030, .040, .050 - not exceed 8 MPH, not engage in unsafe activities, stay to the right, pass only when safe, not pass when cross solid line Rollerskaters Pedestrians Other Uses/Devices Not Specifically Prohibited on Boardwalk Moped/Motorized Bicycle Arguably covered under the prohibition on "other motorized vehicles", but to specifically enforce it is recommended to expressly define and regulate them Golf Cart Low Speed Vehicle Motorized Skateboard Motorized Quadricycle Motorized Tricycle Electric Bicycle Hoverboards Segway / EPAMD Subsequent Technology... December 03 2013 E, Mr. Black, In an effort to show good faith and to find an amicable resolution to the current situation regarding Pedego Bike usage on the Bob Jones Pathway, Mr. Jim Schlagel would like to bring to your attention the legal facts surrounding the usage of public lands of the United States and the usage of electric bicycles on said public lands. Mr. Schlagel believes that your current opinion regarding the regulation of electric bicycle usage is a simple misunderstanding of facts and rules of law, and that once you are properly informed of the facts you will reevaluate your position and amend your previous statements. The issue in question is whether or not an electric bicycle may be ridden on the Bob Jones Trail (A trail intended for recreational, pedestrian/bike use, by the public). Facts Jim Schlagel, a local resident and business owner, was contacted by a representative from the County of San Luis Obispo [Mr. Curtis Black], claiming that electric bicycles may not be ridden on the Bob Jones Recreational Trail. The Bob Jones Trail is a public land recreational resource in Avila Beach, Ca. The Bob Jones Trail is a recreational pathway, constructed for the sole purpose of providing a pedestrian/bicycle pathway (as stated by the county of San Luis Obispo) so that the public can have an opportunity to engage in peaceful recreational activity in the area around Avila Beach. The Bob Jones Trail covers an area that falls in the zoning of the California Coastal Commission as well as the U.S. Department of Fish and Wildlife. Before constructing the path, the County of San Luis Obispo and representatives from other governmental agencies, prepared an EIR (environmental impact statement) which determined that no wildlife or protected environment would be negatively impacted by the construction or use of the Bob Jones Trail for recreational purposes including, but not limited to, walking, running, and bicycle riding. This EIR was prepared in order for the project to comply with federal environmental law in accordance with 16 USCS § 1604 and 42 USCS § 4332. 10 15 USCS § 2085 1.1. Low -speed electric bicycles 1.1.1. (a) Notwithstanding any other provision of law, low -speed electric bicycles are consumer products within the meaning of section 3(a)(1) [15 USCS § 2052(a)(1)] and shall be subject to the Commission regulations published at section 1500.18(a)(12) and part 1512 of title 16, Code of Federal Regulations. 1.1.2. (b) For the purpose of this section, the term "low -speed electric bicycle" means a vehicle with fully operable pedals and an electric motor of less than 750 watts (1 hp.), whose maximum speed on a,paved level, surface, when ` - powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 mph. 1.1.3. (c) To further protect the safety of consumers who ride low -speed electric bicycles, the Commission may promulgate new or amended requirements applicable to such vehicles as necessary and appropriate. 1.1.4. (d) This section shall supersede any State law or requirement with respect to low -speed electric bicycles to the extent that such State law or requirement is more stringent than the Federal law or requirements referred to in subsection (a). 2. 16 CFR 1512.2 1.2. § 1512.2 Definitions. 1.3. For the purposes of this part: 1.1.5. (a) Bicycle means: 1.1.1.1. (1) A two -wheeled vehicle having a rear drive wheel that is solely human - powered. 1.1.1.2. (2) A.two- or three -wheeled vehicle with fully operable pedals and an electric motor of less than 750 watts (1 h.p.), whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 mph. 3. CHEVRON U.S.A. INC. v. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET 1.1. Summary 1.1.1. Petitioner argued that the Environmental Protection Agency (EPA) regulation, implementing permit requirements for non attainment states pursuant to the Clean Air Act Amendments of 1977 (Act), 42 U.S.C.S. § 7502(b)(6), permitting states to treat all of the pollution -emitting devices within the same industrial groupings as though they were encased within a single bubble, was a reasonable construction of the statutory term stationary source. On appeal, the judgment below was reversed. In support of its ruling, the Supreme Court held that if a statute was silent or ambiguous with respect to the specific issue, the question for a court was whether the agency's action was based on a permissible construction of the statute. Further, considerable weight was to be accorded to an agency's construction of a statutory scheme. The Court noted that while the legislative history of the statute was silent on the instant issue, it did reveal that the EPA's interpretation was fully consistent with one of the two principal goals of the statute -- namely, allowance of reasonable economic growth. Accordingly, the EPA's interpretation was entitled to deference. 4. HR 2592 1.2. Section 2 1.1.2. Section 2 establishes that an electric bike is inherently different than a motor vehicle and shall not be regulated in a manner consistent with a motor vehicle. "For purposes of motor vehicle safety standards issued and enforced pursuant to chapter 301 of title 49, USC, a low speed electric bicycle (as defined in section 38(b) of the Consumer Product Safety Act) shall not be considered a -motor vehicle as defined in section 30102(6) of title 49, USC „ 1.2. Purpose 1.2.1. "The bill removes low speed electric bicycles from the definition of [motor vehicle], within the jurisdiction of the department of transportation where such bicyclesare required to be regulated in the same manner as a motorcycle." 1.2.2. The bill then transfers jurisdiction to the CPSC,where low speed electric bicycles would be regulated "similarly to a human powered bicycle." 1.2.3. Intent "Some electric bicycles provide motorized assistance pedaling, although they cannot be operated solely by motor power. These bicycles, like all non -powered bicycles, are regulated by the Consumer Product Safety Commission (CPSC). Other electric bicycles can be operated solely by the electric motor, but still use light weight frames, are used in a manner similar to non -powered bicycles, and have maximum motorized speeds not greater than those typical of a reasonably athletic bicyclist. An average person can pedal a regular bicycle for perhaps 90 minutes at 13 miles per hour, with professional bike riders maintaining speeds above 25 miles per hour for several hours. This is comparable to most electric bicycles, which can only average approximately 12 miles per hour without pedaling for 90 minutes, with top speeds of 16-18 miles per hour for an average sized adult. In contrast, even most small sized gasoline - powered mopeds can sustain a speed of 30 miles per hour or more for several hours without refueling. Typical users of low -speed electric bicycles include older and disabled riders who do not have the physical, strength to ride up hills without motorized assistance, law enforcement agencies who use electric powered bicycles to increase their patrol range, and commuters who cannot afford automobile transportation or who work in traffic congested areas " "NHTSA testified in May that they believe Congress should amend the Consumer Product Safety Act to provide that low -speed motorized bicycles are consumer products subject to the jurisdiction of the CPSC. Since low -speed electric bicycles are designed not to exceed the maximum speed of a human -powered bicycle, and,they are typically used in.the same;manner as. Shuman -powered bicycles, electric bicypJ _.sk�ould be.regulatecl 4,. . in the same`maniei' and under the same agency (the CPSC) as human-.poyw goo bicycle ." 1.1.4. Summary `This bill would assign to the Consumer Product Safety. Commission (CPSC) jurisdictionfor regulating the safety of low-power electric bicycles. Low-power electric bicycles are defined by the bill as bicycles or tricycles with an electric motor of less than one horsepower or 750 watts and a maximum speed of 20 mph on a level surface. The.bill also would -preempt state laws affecting such vehicles that are more stringet,th4;n the Consumer Products Safety Act, since some states have classified low -speed electric bicycles under their motor vehicle laws." 5. Farmham V. City of Los Angeles 5.1. Summary 5.1.1• Appellant bicyclist was injured while riding his bike on a paved bikeway; as defined by Cal. Sts. & High. Code § 890.4(a), and filed an action against appellee city. The trial court granted appellee's motion for judgment on the pleadings, on the ground that appellee was entitled to immunity, under Cal. Gov't Code § 831.4. Appellant argued that -4 831.4 was inapplicable because the bikeway was a part of the public streets and highways rather than a trail and that the bikeway was paved. The court affirmed the judgment, holding that appellee was entitled to immunity under § 831.4 as the bikeway was a trail under 831.4(b) because it was used for the purposes of accessing a recreational area. The bikeway was not a part of the public streets and highways because a bicycle was not a vehicle under Cal. Veh. _ Code §§ 231, and 670. The grant of immunity applied to any trail, paved, or unpaved because the legislature had not exempted paved trails from immunity. 5. Townson v. Kischassev,144 Cal. App. 2d 363,301 P.2d 55,1956 Cal. App. 1.1. Summary 1.1.1. Section 31 defines a vehicle as a "device in, upon or by which any [***5] person or property is or may be propelled, moved or drawn upon a highway, excepting a device moved by human power...." That section especially eliminates a bicycle in the definition of a vehicle. S. 42 USCS § 12101 1.1.3. (4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination; 1.1.4. (5) individuals with disabilities continually encounter various forms of . discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities; Analysis Federal Law clearly establishes that there is no legal difference between an electric bicycle and a traditional bicycle, thus they must be regulated in the same, consistent manner. Only the Consumer Product Safety Commission may amend or impose regulations upon the products that fall under the definition of a bicycle. Further, under the supremacy clause of the United States Constitution, no state may enact a law that is more restrictive than the Federal law which it is subject to. In this case the Commission establishes that the definition set forth in 15 RSCS 2055 may not be superseded by any State regulation or law. 1.1.1. This section shall supersede any State law or requirement with respect to low - speed electric bicycles to the extent that such State law or requirement is more stringent than the Federal law or requirements referred to in subsection (a).' Due to the current Federal Laws and regulations the County of San Luis Obispo seems to be in violation of 15 USCS § 2085 and 16 C 1512.2. The counties' definition of a "motorized bicycle or moped" does not comply with Federal standards set forth in the aforementioned laws. Because of this flawed definition, that illegally and wrongfully categorizes an electric bike as a type of motor vehicle, Cal Veh Code § 21207.5 (regulating the areas of use of a "motorized Bicycle") is inherently incorrect as well. Although the CSPC only regulates the sale and consumption of products (which means that States may regulate the usage of products), because the CSPC and Congress define an electric bicycle as a bicycle, regulations in place can only be applicable to electric bicycles such as they are applicable to bicycles. The Commerce Clause of the Constitution establishes that Congress may promulgate regulations to the States in order to try and avoid conflict with State Statutory regulation. Thus, although a state has power to regulate commercial matters of local concern, a state's regulations violate the Commerce Clause if they are discriminatory in nature or impose an undue burden on interstate commerce." Shamrock Farms Co. v. Veneman,146 F.3d 1177,1179 (9th Cir. 1998)."[F]or a state - - regalation to be removed from the reach of the dormant Commerce Clause, congressional intent must be unmistakably clear." South -Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 91, 104 S. Ct. 2237, 81 L. Ed. 2d 71(1984). As a result, to authorize a Commerce Clause violation, Congress must do more than simply authorize a State to regulate in [**76] an area, it must "affirmatively contemplate otherwise invalid state legislation," id., and clearly express its intent to "remove federal Constitutional constraints." Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 960,102 S. Ct. 3456, 73 L. Ed. 2d 1254 (1982). Defendants bear the burden of "demonstrating [this] clear and unambiguous intent" 'Wyoming v. Oklahoma, 502 U.S. 437, 458,112 S. Ct. 789,117 L. Ed. 2d 1(1992). (I.E. According to these standards, Plaintiffs' Commerce Clause claims fails as a matter of law if Defendants establish that Congress expressly, unmistakably, and unambiguously authorized California to violate the Commerce Clause.) In this case involving electric bicycles the central question is whether California or the County of San. Luis. Obispo has the right to restrictelectric bicycle access to paths where regular bicycles are allowed. The intent of congress,. in, passing Electric Bicycle regulations seems to not only be for the benefit of consumer regulation but -also to benefit users of electric bicycles by bestowing upon them the same benefits and 'constraints that are applicable to a user of a traditional =bicycle. In addition to the violations above, the claim that electric bicycles are illegal on the Bob Jones Recreational Trail violates the intent of Congress that was set forth in 42 USCS § 4332 and 16 USCS § 1604 requiring that lands be made available to the public for enjoyment and recreation, so long as the determining agency follows the requirements set forth by the respective laws. An agency may not enact a usage plan or make a determination that is arbitrary and capricious. In Chevron U.S.A Inc V. National Resource Defense Council, the Supreme Court also determined that interpretation of a particular statute lies within the intent Congress had is enacting the statute. - "When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question , whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines that Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A Inc V. National Resource Defense Council In this case, the agency has determined that the Bob Jones Recreation Trail is suitable for recreation, including bicycle riding which cannot preclude the riding of an electric bicycle since the two are synonymous. The counties' claim also violates is 42 USCS 8 12101. The ADA determines�tha�;trr for traditional bicycles must also be available for electric ` Mr. Black's argument proceeds by citing SLO County Code Chapter 11-04.50 stating that "(a) includes a motor driven cycle which clearly includes your electric powered vehicles. The sections you have further referenced clearly note the CA Motor Vehicle Code. Chapter 11. 04.50 (g) does not reference the CA Vehicle Code as it relates to all motor vehicles in all areas of County Parks and Facilities. As you know we are seeing more and more electric powered vehicles whether two, three of four wheeled." It should be clear now, in light of the legal information presented in this document, that the County of San Luis Obispo's aforementioned regulations are not compliant with Federal mandates. Specifically SLO County Code Chapter 11-04.50 uses the category of motor driven cycles to classify electric bicycles, which is expressly prohibited by Federal law [15 USCS § 2085 and 16 CFR 1512.2.]. Conclusion In closing, any regulation restricting the use of electric bicycles on the Bob Jones Pathway, promulgated by the County of San Luis Obispo, is an arbitrary and capricious agency action [Chevron U.S.A Inc V. National Resource Defense Council] that clearly undermines the legislative intent of Congress. Mr. Jim Schlagel sincerely hopes that, in the best interest of the residents of San Luis Obispo and in light of the information that has been presented, you will reevaluate your position and amend your previous statements regarding the usage of electric bicycles on the Bob Jones Pathway. Sincerely, Cameron Schlagel Law Student and Son of Jim Schlagel > > '1. > California Vehicle Code Section 467 (a) A "pedestrian" is a person who is afoot or who is using any of the following: (1) A means of conveyance propelled by human power other than a bicycle. (2) An electric personal assistive mobility device. (b) "Pedestrian" includes a person who is operating a self-propelled wheelchair, motorized tricycle, or motorized quadricycle and, by reason of physical disability, is otherwise unable to move about as a pedestrian, as specified in subdivision (a) . '5 " ex coo 56188 Federal Register / Vol. 75, No. 178/Wednesday, September 15, 2010/Rules and Regulations provide sufficient mobility. Those citing objections to the intended use determinant indicated it would be more appropriate to make the categorization determination based on whether -the device is being used for a mobility disability in the context of the impact of its use in a specific environment. Some of these commenters preferred this approach because it would allow the Segway", PT to be included in the definition of "wheelchair." Many environmental and government commenters were inclined to categorize mobility devices by the way in which they are powered, such as bat tery-powered engines versus fuel or combustion engines. One commenter suggested using exhaust level as the determinant. Although there were only a few commenters who would ., make the deternunation based on indoor or outdoor use, there was nearly universal support for banning the indoor use of devices that are powered by fuel or combustion engines. A few commenters thought it would be appropriate to categorize the devices based on their maximum speed. Others objected to this approach, stating that circumstances should dictate the appropriate speed at which mobility devices should be operated— for example, a faster speed may be safer when crossing streets than it would be for sidewalk use—and merely because a device can go a certain speed does not mean it will he operated at that speed. The Department has decided to maintain the device's intended use as the appropriate determinant for which devices are categorized as "wheelchairs." Iiowever, because wheelchairs may be intended for use by individuals who have temporary conditions affecting mobility, the Department has decided that it is more appropriate to use the phrase "primarily designed" rather than "solely designed" in making such categorizations. The Department will not foreclose any future technological developments by identifying or banning specific: devices or setting restrictions on size, weight. or dimensions. Moreover, devices designed primarily for ase by individuals with mobility disabilities often are considered to be medical devices and are generally eligible for insurance reimbursement on this basis. Finally, devices designed primarily for use by individuals with mobility disabilities are less subject to fraud concerns because they were not designed to have a recreational component. Consequently, rarely, if ever, is any inquiry or assessment as to their appropriateness for use in a public: entity necessary. Definition of"wheelchair." In seeking public feedback on the NPRM's definition of "wheelchair," the Department explained its concern that the definition of "wheelchair" in section 508(c)(2) of the ADA (formerly section 507(c)(2), July 26. 1990, 104 Stat. 372, 4"2 U.S.C. 12207, renumbered section 508(c)(2), Public Law 110-325 section 6(a)(2) Sept. 25. 2008, 122 Stat. 3558), which pertains to Federal wilderness areas, is not specific enough to provide clear guidance in the array of settings covered by title Il and that the stringent size and weight .requirements for the Departhnent of Transportation's definition of "common wheelchair' are not a good fit in the context of most public, entities. The Department noted in the NPRM that it sought aMIM as a var dune u} to i), as well and unique fbatures or models with different num of wheels. The NPRM defined a wheelchair as "a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas. A wheelchair may be manually -operated or power -driven." 73 FR 34466, 34479 (June 17, 2008). Although the NPRM's definition of "wheelchair" excluded mobility devices that are not designed solely for use by individuals with mobility disabilities, the Department, noting that the use of the Segways PT by individuals with mobility disabilities is on the upswing, inquired as to whether this device should be included in the definition of "wheelchair." Many environment and Federal government employee commenters objected to the Department's proposed definition of "wheelchair" because it differed from the definition of "wheelchair" found in section 508(c)(2) of the ADA—a definition used in the statute only in connection with a provision relating to the use of a wheelchair in a designated wilderness area. See 42 U.S.C. 12207(c)(1). Other government commenters associated with environmental issues wanted the phrase "outdoor pedestrian use" eliminated from the definition of "wheelchair." Sane transit system commenters wanted size, weight, and dimensions to be part of the definition because of concerns about costs associated with having to accommodate devices that exceed the dimensions of the "common wheelchair" upon which the 2004 ADAAG was based. Many advocacy, nonprofit, and individual commenters indicated that as long as the Department intends the scope of the term "mobility impairments" to include other disabilities that cause mobility impairments (e.g., respiratory, circulatory, stamina, etc.), they were in support of the language. Several commenters indicated a preference for the definition of "wheelchair" in section 508(c)(2) of the ADA. One commenter indicated a preference for the term "assistive device." as it is defined in the Rehabilitation Act of 1973, over the term "wheelchair." A few commenters indicated that strollers should be added to the preamble's list of examples of wheelchairs because parents of children with disabilities frequently use strollers as mobility devices until their children get older. In the final rule, the Department has rearranged some wording and has made some changes in the terminology used in the definition of "wheelchair," but essentially has retained the definition, and therefore the rationale, that was set forth in the NPRAd. Again, the text of the ADA makes the lefinition of "wheelchair" contained in mction 508(c)(2) applicable only to the specific context of uses in designated wilderness areas, and therefore does not .ompel the use of that definition for any tither purpose. Moreover, the Department maintains that limiting the definition to devices suitable for use in an "indoor pedestrian area" as provided for in section 508(c)(2) of the ADA, would ignore the technological advances in wheelchair design that have occurred since the ADA went into effect and that the inclusion of the phrase "indoor pedestrian area" in the definition of "wheelchair" would setback progress made by individuals with mobility disabilities who, for many years now, have been using devices designed for locomotion in indoor and outdoor settings. The Department has concluded that same rationale applies to placing limits on the size, weight, and dimensions of wheelchairs. With regard to the term "mobility impairments," the Department intended a broad reading so that a wide range of disabilities, including circulatory and respiratory disabilities, that make walking difficult or impossible, would be included. In response to comments on this issue, the Department has revisited the issue and has concluded that the most apt term to achieve this intent is "mobility disability." In addition, the Department has decided that it is more appropriate to use the phrase "primarily" designed for use by individuals with disabilities in the final rule, rather than "solely" designed for use by individuals with disabilities—the phrase proposed in the NPRM. The Department believes that this phrase more accurately covers the range of devices the Department intends to fall within the definition of `wheelchair." After receiving comments that the word "typical" is vague and the phrase "pedestrian areas" is confusing to apply, particularly in the context of similar, but not identical, terms used in the proposed Standards, the Department decided to delete the term "typical indoor and outdoor pedestrian areas" from the final rule. Imtexd, they final rule paths a s of indoor or at both indoor and outdoor locomotion." Whether the definition of"wheelchair" includes the Segwoy* PT. As discussed above, because individuals with mobility disabilities are using the Segways PT as a mobility device, the Department asked whether it should be included in the definition of "wheelchair." The basic Segway's, PT model is a two -wheeled, gyroscopically -stabilized, battery -powered personal transportation device. The user stands on a platform suspended three inches