@IOWADOT ‘SMARTER I SIMPLER | CUSTOMER DRIVEN. iowadot.gov Director's Otice 800 Lincoln Way | Ames, IA 50010 Phone: 515-290-1111 | Fax 515-299-1120 May 11, 2015 Matthew Brick Brick Genty P.C. 6701 Westown Parkway, Suite 100 West Des Moines, IA 50266 Re: Appeal of Automated Trafic Enforcement (ATE) Evaluation Dear Mr. Brick: ‘On April 15, 2015, the Departhent of Transportation (DOT) received your appeal ofthe lowa DOT ‘evaluation of your ATE annual por Specifically, you are appealing the directive to remove the westbound camera at Universty Drive and US 61 ‘Your appeal also raises issues relating to DOT's legal authority to implement its ATE rues: the City’s home ule authority; and the procedure DOT followed concerning its ATE rules. Let me first address these issues. DOT IS LEGALLY AUTHORIZED TO REGULATE THE USE AND PLACEMENT OF ATE UNITS ‘THROUGH ADMINISTRATIVE RULES lowa DOT has legal authority to regulate the use and placement of Automated Traffic Enforcement CATE”) units on municipal extensions of the primary highway system and to implement such ‘administrative rules, by vitue of the folowing legal authorities: lowa Code section 207.2 creates the state department of transportation and provides that it “shall 'be responsible forthe planning, development, regulation and improvement of transportation in the state as provided by lan.” (Emphasis added). The director of the DOT is expressly authorized to:‘Adopt rules in accordance with chapter 17A as the director deems necessary for the ‘administration of the department and the exercise of the directors and department's powers and duties. lowa Code §307.12(1)). In tum, the lowa Transporation Commission is directed to approve the DOT administrative cuss. Iowa Code §307,10(15) lowa DOT is vested with juriscction and control over the primary highways. lowa Code §306.4(1). lowa Code section 306.4(4)(a) establishes concurrent jurislction between the DOT and the City with respect to “the municipal extensions of primary roads in all municipaliles" and further allows them to consult with ‘each other as to the “kind and type of construction, reconstruction, repair and maintenance" and enter into agreements concerning such. Id, Thus, the concurrent jurisdiction exception for municipal textonsions 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 “consul” withthe city and the parties are to agree on a divsion of the costs. ATE rules are not matters of highway construction or maintonanee. ‘The commentator in “Slave to the Trafic Light: A Road Map to Red Light Camera Legal Issues,” 10, Rutgers JL. & Pub. Poly 401 (2013), recognizes the inherent authorly of 2 state department of transportation to regulate autemated traffic enforcement devices on the state highways running through ‘municipalities: Inthe absence of action bya state lenislature.a state's department of transportation may nonetheless issue polices regulating the use of red loht cameras in municipalities across that stale. For example, the Louisiana State Legislature has consistently refused to enact legislation authorizing and reguiatng 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 ofthe stats legislature, a statute requiing that signs be posted warning of ‘cameras being used at an intersection may indicate thatthe legislature impliedly consents to their use. Nonethaless, the New Mexico Department of Transpottation has the ‘authoriy to ban red light cameras and speed cameras from locations it ‘species. Similary, athough there is no state law about red light cameras or speed cameras in Missouri, he Missouri Department of Transportation has issued @ policy for the installation and use of these cameras. (Footnotes omitted). 10 Rutgers JL. & Pub, Pol'y at 408-404. (Emphasis added),‘The authority of the DOT regarding primary highways cannot be halted at the borders of each ‘municipality. It would appear ‘hat the City reads section 306.4(1) asi the grant of jurisdiction was limited geographically 1o primary highways outside of municipalities. No such language was used by the legislature. Such an absurd statutory construction would only lead to disorder where uniformity is needed. Section 306.4(1) and 306.4(4) should be road together and harmonized with the DOT having final authority to adopt the suoject ATE rules. The City simply does not have the voto power it desires over the ATE rules. The COT must be considered the superior highway authority regarding the regulation of primary highways. ‘The “concurrent jurisdiction” referenced in lowa Code section 308.4(4)(a) has major limitations. For example: 8. The DOT Is the highway authority that is legally obligated to remove objects that constitute an “obstructon’ from the highway rightof-way of the primary highway system. lowa Code §§318.1(1), $18 1(2) and $18.1(3); lowe Code §318.4. S20, lowa Code §318.7 (allowing the DOT to bring an inunetion action to restrain righto-way obstructions). See also, 761 IAC 150.4(2)() ("Encroachments or obstructions. a. The department shall expect the city to remove ‘any existing encroachment or obstruction and prevent any futher encroachment or obstruction within the right-of-way, This includes private signs within the rightof-way."); Waters v. State, 784 N.W.2d 24, 29 (lowa 2010); Koohior v. State, 263 N.W.2d 760, 764-65 (lowa 1978) (both cases recognizing that DOT the governmental ently responsible for removing obstructions from the primary highways); b. —_lowa Code section 321.348 states that ‘It shall bo unlawtul for any city to close oF ‘obstruct any street or highway which is used as the extension ofa primary road within such city, ‘except at times of fies oF forthe purpose of doing construction or repair work on such street of righway, or for other reasons with the consent ofthe department, and it shall also be unlawl for any city to erect or cause to be erected or maintained any trafic sign or signal inconsistent with the provisions ofthis chapter.” lowa Code section 921.948: ©. Towa Code section 321,966(1)(f) prohibits the parking of vehicles on the right-of-way of controlled-access facies; ‘4, Iowa Department of Transportation Standard Specification 1107.08(H) (parking of private ‘Vehicles on interstate rght-oF-way Is not allowed and the parking of unattended equipment within ‘the median or the storage of equipment within 50 fest of the edge of pavement is also not allowed);©. Finally, the legstature has wisely made the DOT the superior sovereign regarding tratfic. control device placement on all primary highways. lowa Code §221.253. Indeed, lowa Code section 321,254 expressly restricts local authorities regarding primary highways, A city may not place a sign on a primary highway without the express "permission" ofthe DOT. ‘The fact that an activity Ike the use 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 all ther existing legal suthorities setting forth the legal parameters of such an activity should be ignored a 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 dolagations of rulemaking power to 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 (Iowa 1886). As explained above, the DOT rules regulating the use and placement of ATE systems on primary highways for purposes of safety and effectiveness clearly fall thin statutory authorly. And such administrative rules are generally given the force and effect of law. Wallace v, lowa State Bd. of Educ, 770 N\W.2d 344, 348 (lowa 2008), It is significant that no objections were made to the ATE rules by the Administrative Rules Reviow ‘Commitee (ARRO), the governor or the attorney general after their review. The ARRC plays an important role in the promulgation of agency rules. This is a bi-partisan group of lagisators which functions to review the validty of administrative rules under lowa Code section 17A.8, Nor has the legislature acted to nulify the ATE rues through legislation. This allows the fair assumption thatthe legislature approves of the DOT's ATE rules. For example, the lowa Supreme Court in State v; Miner, 331 N.W.2¢ 683, 687 (lowa 1983), made euch an assumption of legislative approval regarding the DOT's rules regulating brokers of motor vehicles. The Cour in Miner reasoned: ‘The lowa Administrative procedure Act affords the legislature an opportunity to object to agency rules and to override them by statute. lowa Code §§17A.4(4)(a), (8). These stops were not taker by the legislature; therefore, we assume that the legislature approved of the requirement that brokers be licensed as dealers and of the resulting pplication of the title requirements to all who initiate the retail sale of motor vehicles. 331 N.W.2d at 687. DOT's ATE RULES DO NOT VIOLATE THE CITY'S HOME RULE AUTHORITY “The Gity also appears tobe claiming that DOT's ATE rules violate its home rule authoriy undor lowa law. This ignores the limitation on such authorty set forth under lowa Code section 964.1:264.1. Scope ‘Acity may, except as expressly limited by the Constitution of the State of lowa, and not Inconsistent with the lews ofthe general assembly, exercise any power and perform any function It deems appropriate te protect and preserve the rights, privileges, and property ofthe city or ofits residents, and to preserve and improve the peace, safety, health, welfare, comfort, and ‘convenience of ts resiients. This grant of home rule powers does not include the power to enact private or chil law governing cil relationships, except as incident to an exercise of an independent city power. (Emphasis added), ‘As explained further above, DOT's legal autho for its ATE rules is well-established. 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 consstent with the provisions of lowa Code section 964.6, which provides: 364.6, Procedure A city shall substantialy comply with a procedure established by a state law for exercising a city power. I a procedure isnot established by state law, a city may determine its own procedure for exercising the power. {Emphasis added), *Validly adopted rules have the force and effect of law." Anderson v. lowa Dept of Human ‘Servs, 368 N.W.2d 104, 108 (lowa 1985); B. Schwartz, Administrative Law § 4.7, at 160 (2d. 11984) (agency rule has same force and effect as a statute); lowa Federation of Labor, AFL-CIO v. lowa Dept. of Job Senice, 427 NW.2d 443, 447 (owa 1888). DOT's ATE rues set forth the procedures that a City must follow in order to place ATE units on the primary road system. They {do not violate the City’s home rule authority. Finally in ts Notice of Appeal, the City references the fact thatthe DOT assisted in the inital selection and installation of ts traffic cameras and that DOT posted the City-ovned signage waming motorists of the use of such cameras for enforcement purposes. DOT's past actions assisting this City in such ‘matters do not prohibit it from shanging is policy or changing course on the issue of ATE unit usage and placement on the primary road system, so long as the change remains within its existing legal authority. Motor Vehicle Manufacturors Association of the United States, Ine. v. State Farm Mutua! ‘Automobile Insurance Co, et.al, 463 U.S. 29, 69, 103 S, Ct. 2856, 77 LEd.2d 443 (1989) (Rehnquist, J, concurring in part and isserting in part) ("The agency's changed view of the standard seems to be rolated to the election of a now President of a diferent poltical party. It is readily apparent thatthe responsible members of one administration may consider public resistance and uncertainties to be moreImportant than do their counterparts in a previous administration. A change in administration brought about by the people casting thele votes is @ perfectly reasonable basis for an executive agency's reappraisal of the costs and 2enefts ofits programs and regulations. As long as the agency remains within the bounds establishec by Congress, itis entiled to assess administrative records and evaluate piorltes in light of the philosophy of the administraton."; Rabiner v. Humboldt County, 278 NW, 612, £614 (lowa 1938) (where county authorities acted legally in removing certain troes along highway adjacent to lands owned by paint ther motives for doing so are immaterial). An agency's poy priors tend to shift over time in response to changing condtions. In fact, in light of the widespread proliferation of [ATE unite throughout the Stat of lowa over the past soveral years it would be ltresponsibe for the DOT. ot to continually assess the impact of ATE devices on primary highways ~ especially since DOT is Ltimately responsible forthe primary road system, IOWA DOT FULLY COMPLIED WITH ALL RULEMAKING REQUIREMENTS OF LC. 17A4 DOT fully complied with all the rulemaking provisions of lowa Code section 17A.4 in connection with ts ATE rules, as explained immesiately below. 7 and lowa law separately distinguishes between the lowa Transportation “Director” “Department “Commission.” See, lowa Cede section 307.1. The duties of the Transportation Commission are set forth under lowa Code secion 307.10. lowa Code section 307.10(18) specially provides the -ommission shal. Approve ail rules prior to thelr adoption by the [DOT] director." lowa Code scion £207.10(18) (Emphasis added), lowa Code section 17A.4(1)(b; govems the agency rulemaking process. It states as follows: “1. Prior to the adoption, amendment, or repeal of any rule an agency shall.b, Afford all Interested persons not less than twenty days to submit data, views, or arguments in wring. If timely requested...the agency must give interested persons an opportunity to make oral presentation” lowa Code section 17A.4(1)(0) (Emphasis added). Clearly, under the plain language of the above legal authorities, although the commission uitimately approves) all rues" (See, loxa Code section 907.10(16)), itis the agency thats required to “TA}ford all Interested persons not less than twenty days to submit data, views, or arguments in writing” and itis the ‘agency that is required to provide “an opportunity for oral presentation’ (See, lowa Code section 17A.4(1)(0)). And itis undisputed that the agency did provide such an opportunity to the City and all Interested parties on October 30, 2013, (See, chronological chart below).Moreover, the phrase “an opportunity for oral presentation’ as used in lowa Code section 17A.4(1)(0) expressly requires the agency to provide only one such opportunity (‘an opportunity for oral presentation..."). See, State ¥, Kidd, 862 N.W.2d 764, 765 (Iowa 1997) ("Based on the ordinary meaning ofthe word “an” as ascertained from the dictionary, we think the statute refers to possession of a single offensive weapon."). As indicated above, the City and all other interested parties received such “an “opportunity” at the October 80, 2018 DOT Public Hearing lowe Gade suction 174 ses forth the procedural requirements DOT must fellow in connection with its ‘administrative rules. Each requirement of lowa Code section 17A.4 was met by DOT with respect to the ATE rules, as indicated in the ‘olowing timeline: Dae sep Taga Rao Tan ET ‘BOT enpiayees Save Gant and Tay Googe at with OT Diectorte douse inirabe se concening autos trafic norcament Wars BOS Press Wasa sao rong he pub tat he (OT wt tat he format rulemang process soon Taran 15, SOTSTs Raguat | DOT at woreed on aang ao13 the acne os Sete BOTT] UOT Dresar approveatne | TETAS TORT Notice intense Acton ay Sapien BR ry Raga aay | FATS TRA ‘ed ie araling for prelearnce withthe ‘Govemors tien (Admiitatve Flos coordinatorSip Tegal Author Soplombor, 2073 The Govemors Ofiee (fomnistative ules Coordinator) approved the NIA tor publication ‘Oaaberz, BOT TR Ruban he Tow Adminitrative Bulletin, ARC H10970. Towa Code secton TAA) ‘Gaiabor 2, BUTS ress Teease Sent Out notifying the pubic that the DOT published the proposed administrative rales and tha the publ could provide writen ‘comments or atend the ube meoting Daebers, DOT “aaa Faies | Towa Code section TAB Review Commitee reviewed NIA (Commitee took no action) ‘aiobar, 2uTaTe | Puke Comment Period [Tawa Cade section TTA ATO] October 31,2013 Tet IAC 10.22) ‘Oatober 30, 2073 DOT reid publ esting in Antony Towa Cade Seaton TTR ACTET 761 IAC 10.22) Oaaber se, IT Deaaine or poste Towa Cade eect TTAATTOTDate Step Tegal Authority December 10, 2013 | Commission Meeting, | Towa Code section 307 70tt5) (Commission 781 IAC 10.213) approved). Jawa Code section 307.12(1)() DOT Director adopts lowa Code section 17A.5(1) the rubs, Tracy George electronically fies the | lowa Code section 17A.5(1) adopted and led rulemaking withthe IAC Eeitor for publication. ‘Adopted and filed, published inthe Iowa ‘Administrative Bulletin, ‘ARC #12606 February 7, 2014 | Adminitvatve Rules | Towa Gode section 17AS Review Committee reviewed adopted and filed rlemaking (Comraittee took no action, February 12, 2014 | Rules ware afectve | Towa Gade section 17A 52) ‘The City (and all other intaested parties) had ample opportunity to submit both written and oral information to DOT for consideration. Such intorested parties took full advantage of that opportunity uring the October $0, 2013 DOT public hearing on the ATE rules; they submited approximately 384 pages of written information to DOT and many made oral presentations at the October 90, 2013 DOT Public Input Meeting (ether interested parties had previously made oral presentations at the °Administrative Rules Review Commitiae hearing on October 8, 2013). DOT carefully reviewed and considered all of the written and oral comments conceming the ATE rules provided by all interested parties. DOT made same changes to the rules and then proceeded to full the remaining requirements ‘of lowa Code section 174.4. In considering issues you ralead as part of your appeal, | have also reviewed crash and violation information and evaluated your concer about the camera being within 1,000 feet ofa lower speed limit. Besow fs ha information, ‘Number of Crashes [As stated in the DOT's evaluation of the City's ATE program, the number of crashes increased when comparing two full calendar years before the cameras were installed to two full calendar years after the cameras were installed. Specifically there were 10 total crashes for 2009-2010 and 11 crashes for 2012-2018 (this crash data wes provided by the City in their annual report. ‘The primary measure of elfecfveness for any safely countermeasure is the reduction of crashes. To get ‘a better understanding of the safety impact ofthe cameras at ths location and to gather more crash data ‘or more years, the lowa DOT offers the following crash data based on al crashes within 160 feet of the Intersection, 2in 2004 in 2005 2iin 2008, ein 2007 in 2008, in 2009, Sin 2010 Sn 2011 ~ speed and red-light running camera installed Bin 2012 Bin 2013 4in 2014 From this new crash data, the average annual number of crashes at this intersection inthe before years is 3.6 2004-2010) and the average annual number of crashes at this intersection inthe ater years is 5.0 (2012 ~ 2014). 20In your appeal, when comparing crashes before and after the cameras were installed, you combined the total number of crashes at all f your intersections (with ATE cameras) rather than looking at specific intersections, Intersections should be evaluated individually as each intersection has unique characteristics and issues, ‘Algo in your appeal, you state the City’s goal for this camera “was fo reduce speed to secure greater ‘safety for the higher volume of vehicles and pedestrians” I the goal isto sacure greater safety’, the best way to measure the performance of a safety countermensure is by evaluating crashes. This is Consistent with how lowa State University routinely evaluates safety countermeasures such as ‘automated enforcement cameras. Based on the above crash information, total numberof crashes increased after the cameras were instale. Number of Speed Violations 12013, the camera at University Drive and US 6: issued 7,262 speed violation tickets which is, 13 times higher than the average number of speed violation tickets (556) Issued by each ofthe thor § cameras located at 9 intersections), Itis often true thatthe annual numberof violations issued by any automated camera will decrease in the frst several years afer that camera is activated, This occurs as drivers become aware ofthe camera location and the consequences of violating traffic laws at that location Based on ths information, there are a vary high number of speed violations issued at this intersection, “The westbound camera on US 61 is located approximately 820 feet after a lower speed limit sign (65 mph to 45 mph). lowa Administrative Code 761—144.6(1)(b)(10) provides that automated ‘enforcement chould net be placed within the fret 1,000 feet of a lower speed limit Jawa DOT established the location fortis speed limit reduction (55 mph to 45 mph). In ‘September 2014, Chol of Police Brett Takington emailed Tim Crouch (DOT) requesting the iowa DOT relocate the speed limit signs further away from the camera so the camera would be in compliance withthe stete rule. After not receiving a response, Chit Talkington later requested the DOT move the spud limit signs or consider “grandfather in the camera location. Neither of these options was considered acceptable by the lowa DOT. nIn summary, your appeal to continue to use the westbound speed and recight running camera at University Drive and US 61 is denied because the data does not provide convincing evidence that this camera is making the intersection safer and this camera is within 1,000 feet of a lower speed limit. Also of concern isthe very high number of speed violations issued at this intersection. Sincerely, Cifilee Lea nee a GCs Eni Gunan Sk Gon Pe Stove Gent, Traffic & Safety, owa Department of Transportation David Gorham, Special Assistant Attomey General, lowa Department of Transportation 2