@IOWADOT SMARTER I SIMPLER | CUSTOMER DRIVEN. lowed BOY Director's office £800 Lincoln Way I Ames, A 50010 Phone: 516-290-1111 | Fax: 616-290-1120 May 11, 2015 (Carol Moser City of Des Moines 400 Robert D. Ray Drive Des Moines, IA 50309-1891 FR: Appeal of Automated Traffic Enforcement (ATE) Evaluation Dear Ms. Moser: (On April 16, 2015, the Department of Transportation (DOT) received your appeal of the lowa DOT evaluation of your ATE annual report. Spectically, you are appealing the directive to remove the fixed speed cameras. ‘on eastbound I-25 located near Mile Marker 4.9. Your appeal algo raises issues relating to DOT's logal authority to implement its ATE rules and the City's home rule authority. Let me fist address both of those issues. DOT IS LEGALLY AUTHORIZED TO REGULATE THE USE AND PLACEMENT OF ATE UNITS ‘THROUGH ADMINISTRATIVE RULES lowa DOT has legal authority to egulate the use and placement of Automated Traffic Enforcement (‘ATE") ‘nits on municipal extensions ofthe primary highway system and to implement such administrative rules, by virtue ofthe following legal authorties: lowa Code section 307.2 creates the state department of transportation and provides that it shall be responsible forthe planning, developmont, regulation and improvement of tranapertation in tho ctato as provided by law." (Emphasis added). The director of the DOT is expressly authorized to: ‘Adopt rules in accordanse with chapter 17A as the director deems necessary for the ‘administration of the dopartment and the exercise of the director's and depariment’s powers ‘and duties. lowa Code §307.12(1}(). In tur, the lowa Transportation Commission Is directed to approve the DOT ‘administrative rules. 1owa Code §907.10(15). lowa DOT is vested with jurisdicion and contol over the primary highways. lowa Code §206.4(1). lowa Code section 306.4(4)(a) establishes concuront jurisdtion between the DOT and the City with respect to“the municipal extensions of primary roads in all municipalities” and futher allows them to consult wth each ‘other as to the “kind and type of construction, reconstruction, repair and maintenance” and enter into ‘agreements concerning such. o. Thus, the concurrent jurisdiction exception for municipal extensions of primary highways is limited to matters involving the “kind and type" of construction and maintenance under section 306.4(4). Further, the DOT is just required to “consult” with the city and the parties are o agree on @ division ofthe costs, ATE rules ae not matters of highway construction of maintenance, The commentator in “Slave tothe Trafic Light: A load Map to Red Light Camera Legal Issues,” 10 Autgers \JL. & Pub. Poly 401 (2013), racoanizes the inherent authority of a state department of transportation to Fagulate automated tafe enforcement devices on the state highways running through municipalites: inthe absence of action by a state legislature, a state's department of transportation may i tng the use of red light cameras in municipalities stata. For example, the Louisiana Stato Legislature has consistently refused to enact legislation authorizing and regulating red light cameras. However, cameras operated on state highways are subject to regulation by the Louisiana Department of Transportation and Development. While New Mexico municipalities may operate cameras without permission of the state legislature, a statute requiring that signs be posted warning of cameras being used at an intersection may indicete that the legislature impliedly consents to their use. Nonetheless, the New Mexico Department of Transporation has the authority to ban red light cameras and speed cameras from locations it specifies. Similarly, although thera is no state law about red light cameras or speed cameras in Missouri the Missouri Department of Transportation has issued a policy forthe installation and use ofthese cameras. (Footnotes omitted). 10 Rutgers JL. & Pub. Poty at 408-404, (Emphasis added). ‘The authoriy ofthe DOT regardirg primary highways cannot be halted at the borders of each municipality. It ‘would appear thatthe City reads section 308.4(1) as if the grant of jurisdiction was limited geographically 10 primary highways outside of muncipalties. No such language vas used by the legislature. Such an absurd statutory construction would only lead to disorder whore uniformity is needed. Section 306,4(1) and 306.4(4) should be read together and hermonized with the DOT having final authority to adopt the subject ATE rules. The City simply does not have the veto power it desires over the ATE rules. The DOT must be considered the superior highway authority rogarding the regulation of primary highways, ‘The “concurtent jurisdiction” referenced in lowa Code section 306.4(4)(a) has major limitations. For example: ‘a, The DOT is the highway authorty that is legally obligated to remove objects that constitute an “obstruction” from the highway right-of-way of the primary highway system. lowa Code §§318.1(1), 218.1(2) and 818,1(3); lona Code §318.4. See, lowa Code §318.7 (allowing the DOT to bring an injunction action to restrain right-of-way obstructions). Soa also, 761 IAC 150.4(2)(a) (CEncroachments or obstuctions. a. The department shall expect the city to remove any existing ‘encroachment or obstruction and prevent any further encroachment or obstruction within the right-of \way. This includes private signs within the right-of way."; Waters v. Stato, 784 NW.2d 24, 29 (Iowa 2010); Koehler v. State, 268 N.W.2d 760, 764-65 (Iowa 1978) (both cases recognizing that DOT is the ‘governmental entity responsible for removing obstructions from the primary highways), b. lowa Code section 321.48 states that It shall be unlawul for any city to close or obstruct any street or highway whch is used as the extension of a primary road within such city, except at 2times of fires or forthe purpose of doing construction or repair work on such strat or highway, or for ‘other reasons with the consent of the department, and it shal also be uniawful for any ciy to erect or cause to be erected oF maintained any trafic sign or signal inconsistent with the provisions of this, chapter." lowa Code secton 321.348; ©. lowa Code section 321.966(1}f) prohibits the parking of vehicles on the right-of-way of Contolled-access facilites; 1. lowa Department of Transportation Standard Specification 1107.08(H) (parking of private vehicles on interstate righ-ot-way isnot allowed and the parking of unattanded equipment within the ‘median or the storage of equipment within 50 feet ofthe edge of pavement is also not alowed); fe. Finally, the legishture has wisely made the DOT the superior sovereign regarding traffic control device placement an all primary highways. lowa Code §321.253. Indeed, lowa Cade section 321.254 expressly restricts local authors regarcing primary highways. A cly may not place a sign fon a primary highway without the express “permission” ofthe DOT. The fact that an activity ike the 1se of mobile ATE units has not been prohibited by the legislature - or that a Court has not yet ruled that DOT's ATE rules are valid - does not mean that al ther existing legal authorities setting forth the legal parameters of such an activity should be ignored or are void. The DOT has been delegated broad powers by the legislature to promulgate administrative rules that are deemed necessary. See, Eliot v. lowa Dept. of Transp. 377 N.W.2d 250, 252 (lowa App. 1985) (‘The lowa courts have consistently upheld broad celegations of rulemaking power fo administrative agencies). The DOT is granted “a reasonable range of informed discretion” in interpreting and applying DOT rules. Frank v. lowa Dept. of Transp, 386 N.W.2d 86,88 (lowa 1986). As explained above, the DOT rules regulating the use and placement of ATE systems on piimary highways for purposes of safely and effectiveness clearly fall within Statutory authority. And such adninistrative rules are generally given the force and effect of law. Wallace v Iowa State Bo. of Educ, 770 NW.2d 344, 348 (Iowa 2008), Itissigniicant that no objections were made to the ATE rules by the Administrative Fules Review Committee (ARRO), the governor or the attemey general after thelr review. The ARAC plays an important role in the promulgation of agency rules. This is a bi-partisan group of legislators which functions to review the valdty (of administrative rules under lowe Code section 17A.8. Nor has the legislature acted to nullify the ATE rules through legislation. This allows tre fair assumpaion thatthe legislature approves of the DOT's ATE rules. For ‘example, the lowa Supreme Cour in Stato v. Miner, &31 N.W.2d 683, 687 (lowa 1983), made such an ‘accumption of lgiclative approva regarding tho DOT ru rogulating brokore of motor vehicles. The Court In Miner reasoned: The lowa Administrative procedure Act affords the legislature an opportunity o object to agency rules {and to override them by statute, wa Code §§17A.6(4)(a),.8(8). These steps were not taken by the legislature; therefore, we assume that the legislature approved of the requirement that brokers be licensed as dealers and ofthe reculting application of the title requirements to allwho inate the retail sale of motor vehicles. 381 NW.2d at 687.DOT's ATE RULES DO NOT VIOLATE THE CITY'S HOME RULE AUTHORITY ‘The City also appears to be claiming that DOT's ATE rules violate its home rule authority under lowa Jaw. This ignores the limitation on such authorky set forth under Iowa Code section 364.1: 364.1, Scope Acity may, except as expressly limited by the Constitution of the State of loa, and f not inconsistent with the laws of the general assembiy, exercise any power and perform any function it deems. appropriate to protect and preserve the rights, prleges, and property ofthe ciy oro its residents, ‘and to preserve and impreve the peace, safely, health, weltare, comfort, and convenience of its residents, This grant of hame rule powers does not include the power to enact private or cil aw ‘governing civil relationships, except as incident to an exercise of an independent cy power. (Emphasis added}. {As explained further above, DOT's legal authority for its ATE rules is welhestabished. The City is not ented, under its home rule authority, to ignore such rules as they are based on existing statutory Authority. This is entirely consistent with the provisions of lowa Code section 364.6, which provides: 364.6. Procedure A city shall substantially comply with a procedure established by a state law for exercising acy power. I procedure is not established by state law, a city may determine its wn procedure for ‘exercising the power. (Emphasis added) “Valisly adopted rules have the force and elfct of lav." Anderson v. lowa Deptt of Human Sers., 368 N.W.2d 104, 108 (lowa 1985); B. Schwartz, Administrative Law § 4.7, at 160 (2d ed. 1984) (agency rule has ‘same force and effect as a statue); lowa Federation of Labor, AFL-CIO v. lowa Dept. of Job Service, 427 N.W.2a 443, 447 (lowa 1988). COT's ATE rulas sat forth the procedures that a City must follow in order to place ATE units onthe primary read system. They do not violate the City’s home rule authority Finaly in its Notice of Appeal the City references the fact thatthe DOT assisted in the inital selection and instalation of its traffic cameras and that DOT posted the City-owned signage waming motorists ofthe use of such cameras for enforcement purposes. DOT's past actions assisting this City in such matters do not prohibit it rom changing is policy or changing course on the issue of ATE unit usage and placement on the primary road system, so long 48 the change remains within its existing legal authority. Motor Vehicle ‘Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., et.al 483 U.S, 28, 59, 108 S. Ct. 2858 77 L Ed 2d 448 (198) (Rehnquist, J. concurring in part and dssenting in part) ("The agency’s changed view of the standard seems tobe related tothe election of a new Presidont of a different poltical party. It is readily apparent that the responsible members of one administration may ‘consider public resistance and uncertainties to be mare Important than do thelr counterparts in a previous administration, A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations. As long as the agency remains within the bounds established by Congress, itis entilad to assess administrative records and evaluate priorities in ight of the philosophy of the administration”) Rabiner v. Humboldt County, 278 NW. 612, 614 (lowa 1938) (where county authories acted legally in removing certain trees along highway adjacent to lands owned by plaintif their motives for doing so are immaterial). An agency's policy priors tend to shit over time in response to changing conditions. In fact, In light ofthe widespread proiferation of ATE units throughout the State of lowa over the past several years it 4‘would be irresponsible for the DOT not to continually assess the impact of ATE devices on primary highways especially since DOT is utimately responsible forthe primary road system. In considering your appeal, |have also reviewed the geometry and safety record ofthis section of 235, the design exceptions noted, and corsidered your concems regarding your inabilty to safety enforce speed limits Using conventional enforcement nethods as deserbed in your appeal. Below is that information, Goomotry and Saloty Record of Eastbound 1226 from Mile Marker 4.8 6.5 “The uphill nature and horizontal curves through this area are moderate and not untypical for an urban interstate roadway. These features do not constitute a safety concem to motorists as this area has one ofthe lower crash rates on I-285 as documented in the 295 drat Safety Audit. Specifically, the crash rate in this ‘section is 23 crashes per hundee¢ millon vehicle miles of travel (HMVMT). For comparison purpose, the ‘average crash rate for the eto cection of eastboundinethbound -235 is $9 crashes per HMVMT, and the ‘rash rate for southboundiwvestbcund 1-235 is 79 crashes per HMVMT (from draft -235 Satety Audit using crash data from 2008-2013, cameras activated Oct. 2011). For futher comparison, the average lowa urban Intorstate crash rate is 104 crashes per HMVMT. ‘Based on this information, | woule not consider this area a high-crash location. Design Exceptions ‘Several design exceptions were used during the design and construction of L235. In this particular area, design exceptions reduced the inside shoulder width from 10 feet to 8 feet, reduced a couple lane widths ‘rom 12 feet to 11.5 feet, and allowed a pre-existing vertical curve to stay the same through the reconstruction. Allo these design exceptions were justiied and approved by FHWA. To compensate for ‘these minor exceptions, lawa DOT placed high type pavement markings n his area to provide enhanced ‘delineation and positive guidance to motorists. Design exceptions are a common and safe practice used by highway designers, Here is an excerpt from the FHWA document tiled: Mitigation Strategies for Design Exceptions: Designers and engineers are faced with many complex tradeoffs when designing highways and streets. A good dasign balances cost, safety, mobilty, social and environmental impacts, and the needs of a wide variety of roadway users. Good design is also context-sensitiveresulng in streets ‘and highways that are in harmony withthe natural and social environments through which they pass. Itmust be recognized, however, that to achiave the balance described above, it isnot always possible to meet design criteria. There is a wide variety of site-specific conditions and constraints that designers encounter. On cccasion, designers encounter situations in which the appropriate solution ‘may suggest that using a design value or dimension outside the normal range of practice ks necessary.inability o Safely Enforce Speed Limits Using Conventional Enforcement Methods From an enforcement standpoint, this section of 235 has many of the same enforcement issues as any other urban freeway in lowa, There are multiple lanes in each lrecton, trafic volumes are high, interchanges are closely s2aced, a high percentage of commuter traffic, a low percentage of tucks, el. In these busy urban interstate roadways, there are some altemative ways to enforce, or manage, trafle speeds. Consider for a moment that there are thousands of miles of urban interstate roadways in America and many of them are more challenging and complex than the systems we have in low ‘To say we cannot safely manage interstate speed limits in Iowa without automated speed cameras is not onl incorrect, but it aso limits our ability to solve problems as we strive to serve lowans. Keep in ‘mind that lowais the only state in the nation with permanent speed cameras on the interstate, We ‘ean, and should, loam from other cities. ‘One way to conduct speed enforcement on an urban freeway isto place an officer on an overpass or (on the outside shoulder wih a radardevice. That officer can then communicate with other officers downstream who personaly issue tickets. During highly congested times, itis not recommended to enforce speed limits as trefic backups and secondary crashes may occur. In these situations, other ‘methods to manage trafic speeds could be used such as placing enforcement vehicis at reasonable intervals inthe traffic stream diving a reasonable speed. This helps calm traffic by allowing trafic to flow freely with visible enforcement. In summary, your appeal to continue to use the eastbound I-235 speed cameras located near mile marker 4.9 Is denied because the data does not provide convincing evidence that ths location is unsafe for motorists and law enforcement conducting routine police work. Sincerely, fal Trombino il Director PTilp CC: Thomas G. Fisher Jr. Sr. Litgator, City of Des Moines Steve Gent, Traffic & Safety, lowe Department of Transportation David Gornam, Special Assistant Attomey General, lowa Department of Transportation