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Gibson, Dunn & Crutcher 200 Park Avenue New York, NY 10165·0193 Tel 212.351.4000 www.gibsondunn.com
Jim Walden Direct: +1 212.351.2300 Fax: +1212.351.5300 JWalden@gibsondunn.com Client 66725.00001
August 19,2011 VIA CERTIFIED MAIL Janette Sadik-Khan Commissioner New York City Department of Tran sportati 011. 55 Water Street, 9th Floor New York, NY 10041 Re: Demand to Remove the Experimental Bike Lane on Prospect Park West
Dear Commissioner Sadik-Khan: I write on behalf of Neighbors for Better Bike Lanes ("NBBL") and Seniors for Safety ("SFS"). My clients hereby demand that the New York City Department of Transportation ("DOT") remove the bike lane installed on Prospect Park West between Bartel Pritchard Square and Union Street (the "bikeway"). This demand, stemming from a decision issued by Justice Bert Bunyan on August 15, 2011 (the "Decision"), is based on DOT's own post-installation analysis of the EBL, which DOT presented in January 2011. Although DOT claimed the data show that the bikeway was a "resounding success," the data actually show an increase in safety risks for pedestrians, bikers, and motorists. The data also show that DOT has grossly exaggerated the purported reduction in speeding. As you are aware, the Decision establishes that NBBL's and SFS's administrative remedies include demanding that DOT remove the bikeway. As Justice Bunyan stated, NBBL and SFS can only "exhaust their administrative remedies ... by confronting DOT with their interpretation of the January 2011 data and by obtaining DOT's separate and independent determination not to remove the bikeway during its implementation phase notwithstanding [their] interpretation of such data." Seniors for Safety v. New York City Dep't of Transp., No. 5210111, at 18 (Sup. Ct. Kings Cnty. Aug. 15, 2011). As you are also aware, the Decision establishes that, as of this date, DOT never made a final agency decision whether "to remove the bikeway." Thus, on behalf ofNBBL and SFS, I now request a response to this letter providing DOT's final agency determination whether to remove the bikeway. We request a response as soon possible, but in no event no later than September 2, 2011.
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Janette Sadik-Khan August 19,2011 Page 2
Basis for Demand
Following the installation of the bikeway in June 2010, DOT purported to conduct a study of traffic and safety on Prospect Park West to access the impact of the bikeway. DOT presented the "results" of this evaluation at a meeting of the Community Board 6 Transportation Committee 011 January 20, 2011. Despite DOT's core claims - that the bikeway improved safety conditions, led to a decrease in the number of crashes and injuries, and dramatically reduced speeding - it is evident that DOT manipulated the study data. In actuality, following installation of the bikeway, Prospect Park West has become less safe for pedestrians, bikers, and motorists.
Crashes and Injuries
Despite DOT's contention that crashes and injuries on Prospect Park West have been reduced following the installation of the bikeway, the evidence shows that both crashes and injuries have increased. DOT attempted to hide this fact by presenting (in its only public meeting to discuss the study) a chart depicting the average of 3 years' worth of data for crashes and injuries before the installation of the bikeway. However, if the data is considered on a yearover-year basis, it becomes quite evident that both crashes and injuries had been decreasing in the years before the bikeway was installed, and then both increased after the installation of the bikeway. The charts attached to this letter clearly show the differences between what DOT claimed and what the data actually showed. Although DOT attempted to justify the use of three-year averages by reference to the Federal Highway Administration's Highway Safety Improvement Program Manual, this manual never suggests that you can display only the averaged data in an effort to obscure a statistical trend. In fact, this manual, when displaying data trend lines, uses a line graph that included data points for every year of analysis. DOT has never explained, in public or otherwise, why it chose to show only the results of the averaged data instead of every data point, which effectively hid from the community the true impact of the bikeway. In its final agency action, DOT needs to account for and explain who made the decision to present only the averaged data rather than all of the yearly data points, which seemingly contradicts the only official data standard that DOT has referenced. Moreover, a review of the data shows that DOT included accidents that occurred on side streets to Prospect Park West. When these side-street incidents are removed from the data set, the adverse effects of the bikeway become even more pronounced. The charts attached to this letter show the differences between the comingled data presented by DOT and the data showing
Janette Sadik-Khan August 19,2011 Page 3
only accidents on Prospect Park West. Again, DOT's final agency decision must account for and explain the decision to include side-street data in the study results. ! 2. Speeding
DOT's evaluation of traffic speeds on Prospect Park West before and after the installation of the bikeway was highly misleading, as it grossly overstated any decrease in speeding. This is true for two reasons. First, although DOT measured traffic speeds at three locations on Prospect Park West before and after the installation of the bikeway, in its January 2011 report it presented only a comparison of traffic speeds at the location showing the largest purported reduction in traffic speeds. In other words, DOT cherry-picked data showing the largest reductions, and it presented only that data. Second, although DOT had collected traffic speeds at this location dating back to March 2007, it failed to include this data in the speeding analysis. Had DOT followed the multi-year averaging methodology it used for the safety data, the purported reduction in speeding wouldl have been far less significant, showing a reduction in average speed of only. 7 miles per hour as opposed to the purported 7.2 miles per hour reduction in speed that DOT chose to present. DOT has never accounted for the inconsistent methodologies it used to present the data regarding crashes and injuries, on the one hand, and traffic speeds, on the other hand. DOT's final agency determination must account this serious discrepancy in the methodologies it used in presenting these data, as well as for the decision to cherry-pick data to show a large reduction in speeding. 3. Lack of Objectivity
DOT has also failed to explain how it could have conducted an objective scientific study of the bikeway when DOT employees who were involved in conducting and presenting the study were colluding with pro-bikeway lobbyists to attack members of the community who opposed
Although DOT has subsequently collected additional data following its January 2011 analysis regarding accidents and injuries on Prospect Park West, its analysis of this data still includes incidents occurring and side-streets and thus suffers from the same misrepresentations as the January 2011 analysis. DOT has not released the vast majority of the data underlying any study or analysis DOT may have conducted after January 2011. If there is any such data relevant to your final agency action, it should be provided with your fmal agency determination.
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the bikeway. These attacks included a commitment to "publicly disgrace" opponents, as well as belittling senior citizens who opposed the bikeway. DOT has never accounted for, and in fact has never even addressed, these serious breaches in public trust that occurred when members of a public agency coordinated and encouraged vicious attacks against community members, all to support a decision to install a bike lane. As part of DOT's final agency action, we expect that DOT will address this issue and explain how its study can be considered scientifically objective and valid in light of the obvious bias of its employees and their collusion with pro-bikeway lobbyists. B. FOIL
As you are aware, the court has ruled that you must comply with our FOIL request, finding that "DOT has failed to respond fully and adequately to NBBL's FOIL request" and that DOT's "response [regarding its FOIL productions] makes no sense." Pursuant to the Decision, we will send you, within one week of the date of this letter, a specific list of any information my clients sought in their FOIL request but have since received from other sources. However, DOT has no excuse for failing to immediately produce documents clearly in its possession that it did not previously produce or that it inappropriately redacted and which my clients obviously could not have obtained elsewhere, including but not limited to (1) any studies conducted by DOT before implementing the bikeway; (2) any study-design plans for the study of the bikeway; (3) documents relating to the basis for DOT's decision to report its data using averaged data regarding crashes and injuries and to report cherry-picked data regarding speeding; (4) documents regarding the methodology DOT used to study the effect of the bikeway on motor vehicle speeds; (4) data on emergency vehicle response times before and after the implementation of the bikeway; and (5) the complete correspondence between DOT and probikeway lobbyists. We expect that DOT will provide a full response to our FOIL requests as well as documentation supporting whatever final agency action it chooses to take in response to this letter. Again, we demand full compliance with your legal obligations by September 2nd. C. Conclusion
You have consistently addressed your critics, including my clients, in dismissive and condescending terms, labeling them as people "merely not liking a change." This is quite a stunning perspective from a public servant, particularly when used to describe a broad group of progressive and highly productive community members. Your words are especially galling to my c1ients since they long-ago offered to settle their grievances by installation of the very bike lane envisioned in the Master Plan. Regardless, your position shows a continuing failure to apprehend the serious problems that the community has with DOT's bias and manipulation of the facts, even ifin support of what
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it believes to be laudable goals. The ends do not justify the means. expect objectivity and truthfulness from its public officials.
The public has a right to
DOT's actions with respect to the bikeway clearly fail to meet the standard that the public is entitled to expect. We hope that you will take this opportunity to finally address these issues seriously and provide the public with the level of candor to which they are entitled. Regardless, we expect your final agency determination, the documents we are entitled to by court order, and any documents supporting whatever final agency action is ultimately taken, no later than September 2, 2011. If you intend to disregard any request in this letter, or do not intend to comply with any aspect of the court's order, we would appreciate an even more prompt response. Until this matter is fully resolved, either through DOT's agreement to remove the bikeway or a final court decision on the merits, DOT should refrain from taking any further action to modify the bikeway. Given the serious issues raised in this demand letter, any further expenditure to modify the bikeway will only result in a greater waste of taxpayer resources in the likely event that DOT is ultimately required to remove the bikeway. Sincerely,
J m ~~lden
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