76% of Voters Support SunRail

According to an Orlando Sentinel poll, 76% Orlando voters back SunRail, the 61 mile commuter rail system Governor Scott is reviewing. 

Another poll, of major employers on the SunRail route including the Orange County Courthouse, Rollins College, and Tupperware, found that huge majorities of workers would consider using SunRail for their commute. 

Governor Scott received a packet of more than 100 letters and resolutions from businesses, civic organizations, and local governments supporting SunRail.

Winter Park Commission Urges FDOT to Adopt Complete Streets

The Winter Park City Commission unanimously adopted a Complete Street resolution--to gradually make streets safe and comfortable for motorists and non-motorists.  Importantly, the City urged the Florida Department of Transportation to follow suit.

WMFE-FM's Mark Simpson reported on Winter Park's resolution at THIS LINK.  He interviewed me for the news report in front of an apartment complex across from a Lynx bus stop on Lee Road--a four lane divided highway.  There's no painted crosswalk in the highway--or any relatively safe place to cross to the bus stop--for more than a half-mile in either direction. 

During the interview, a lady in an electric wheelchair zoomed into the thoroughfare while cars whizzed by her back and forth at 45-50 mph. 



Photo by: WMFE's Carly the intern.

The report states that I persuaded lawmakers to start adopting Complete Streets principles.  Truly, the credit goes to Florida Senate Majority Leader Andy Gardiner, who has expressed that Complete Streets principles should apply at both the State and local levels.  Senator Gardiner had language incorporated into the Community Planning Act of 2011 giving local governments the tools to use Complete Streets and street grids to implement "transportation concurrency," which is Florida's system of widening roads to accommodate new development.  Under the old concurrency system, a motor vehicle capacity deficiency would require the widening of an arterial road (making it less safe for pedestrians), despite the presence of a parallel road, or the ability to create a grid or other alternatives for motorists.  The new language gives much needed flexibility to local governments. 

FDOT has adopted Complete Streets in its 2060 long-range plan.  For the lady on the electric wheelchair, we can't wait that long. 

Complete Streets Revitalizing New York City

Here's link to an interesting StreetFilms video about how "Complete Streets" principles are revitalizing New York City.  On-street parked cars buffer the bike lanes, which the City painted green.  (The Federal Highway Administration has now approved green bike lanes.  They should become more common.)   The City installed the bike lanes without reducing the number of lanes by narrowing lane width from 12 feet.  You'll find ideas in the video applicable to less dense areas, including Central Florida.

John Mica: Please Streamline the Bureaucracy While Saving Sidewalk, Bike Lane Funding

Anyone who periodically reviews my posts know I have great admiration for Rep. John Mica (R-FL), chairman of the House Transportation Committee.  I am asking him to consider modifying a proposal he floated to eliminate a 10% federal funding mandate for sidewalks and bike lanes.  The Orlando Sentinel published my strong words last week:

"How many more headlines must we read of kids getting killed or critically injured walking to school, walking to a school bus or riding their bikes?" Geller said. "To shift funding away from bike lanes and sidewalks, when Florida is number one in the nation for pedestrian and bicyclist deaths, is reckless and irresponsible."

Today, for the second time in two weeks, a motorist struck a child waiting for, or walking to a school bus in Central Florida.  The child, fourth grader Anthony Moore, died.  There were no sidewalks despite numerous subdivision homes nearby. 

Minneola Shores Road in Clermont, where a motorist killed a 4th grader today waiting for a school bus.  This photo came from the Orlando Sentinel. 

The Florida Department of Transportation devotes only about $35 million to sidewalks and bike lanes out of a $7 billion budget.  We are literally talking about a drop in the bucket.  Removal of the federal mandate would jeopardize this minimal funding. 

As I told Fox35 news anchor Keith Landry, if we have no assurance the States will spend the funds where needed, we need to question whether to remove the mandate. 

I appreciate Rep. Mica's interest in streamlining the bureaucracy.  A federal bureaucrat should not require considerable brain power or time to to calculate 10% of a grant figure and to review a a one page certification that the funds were appropriated for the intended uses.   Therefore, the new Federal Transportation Bill should:

(1) streamline the review and approval process for the funds;

(2) eliminate the mandate when States reach certain benchmarks, such as a reduction in the number of pedestrian and bicyclist deaths and critical injuries; and

(3) at the very least, eliminate the mandate only for highway landscaping and beautification, and reduce the 10% figure commensurately. 

The benchmark idea comes from Professor Bruce Stephenson, director of the Master of Planning program at Rollins College.  Ironically, several proposed SunRail stations are on or near State roads.  To devote no resources to bike and pedestrian facilities in these areas makes no sense. 

Although not scientific, those who responded to an Orlando Sentinel online poll voted decidedly against removing the sidewalk and bike lane funding mandate: 

Poll: Should feds cut money for bike paths, sidewalks?

U.S. Rep. John Mica wants to let federal-gas-tax money designated for bike paths and sidewalks to be spent on roads instead. Should the feds cut money meant for bike paths and sidewalks?

Yes. Far more people use roads, and with our infrastructure crumbling, fixing them comes first. (16 responses)         6%

Maybe. How about only if bike lanes and sidewalks are added when roads are improved? (4 responses)    1%

No. We should encourage more people to walk and bike and get out of their cars. (259 responses)
93%

279 total responses

(Results not scientific)

Winter Park Taking the Lead on "Complete Streets" in Central Florida

Winter Park will likely become Central Florida's first local government to adopt a Complete Streets Policy, requiring thoroughfares safe and comfortable for motorists and non-motorists.  Click HERE for a story running in the Winter Park/Maitland Observer.  The draft I reviewed would encourage the FDOT to adopt a Complete Streets policy, too, and would direct City staff to work with the FDOT on Complete Streets implementation.  The FDOT controls Winter Park's principal thoroughfares--17-92, Aloma/Fairbanks, and Lee Road--the City's most dangerous for pedestrians.

New Urbanism Founder, Duany, at Rollins College

My land use law student in the Rollins College Master of Planning in Civic Urbanism program, Linda Puritz, blogged a good compilation of quotes from Andres Duany, one of the Congress for the New Urbanism founders, during his recent lecture.  You can find them by clicking HERE. 

Wringing Savings for the Citizens

Orlando Sentinel reporter David Damron did an interesting write-up getting perspectives from former Commissioner Linda Stewart, Rollins College political science professor Richard Foglesong, Commissioner Fred Brummer, and myself, of Orange County Mayor Teresa Jacobs' first 100 days in office.  I commented that, instead of criticizing the Performing Arts Center "just to score political points," she got the County involved in "wringing savings" from the project.  I said the citizens will ultimately benefit.  Professor Foglesong called it her "finest hour."

Although not included in the story, I told the reporter that Mayor Jacobs' most important task during her next 100 days is using her credibility as a budget hawk and transportation policy expert to try to persuade Governor Scott that it is economically irrational to kill SunRail and the billions in transit oriented development it will generate.  Two of our law firm's municipal clients on the planned SunRail line, Longwood and DeBary, passed transit oriented development ordinances.  Winter Park is also expecting economic benefits.  Here's a link to an article about the "health village" Florida Hospital plans to build if SunRail becomes reality.

Complete Streets--A Key to Economic Revitalization

Former FDOT engineer Dan Burden, one of the nation's leading voices for Complete Streets, safer for motorists and non-motorists alike, gave a stellar presentation to the Winter Park Health Foundation on Monday.  He presented example after example of thoroughfares he reconfigured for slower design speeds.  The result in each case: economic revitalization.  Here's a new video featuring Dan by Streetfilms showing some of the examples....

Why High Speed Rail Will Return: Third World Infrastructure Surpassing Florida's

The Interstate Highway System sits at the pinacle of our nation's transportation infrastructure.  I recall driving from Philadelphia to Washington, D.C. in the early 1990's with my wife's cousin from Uruguay.  The system's efficiency and design--linking major metropolitan areas and beltways--impressed him.  Soon thereafter, when I drove through Uruguay from the Argentine border to Punte del Este on the Atlantic Ocean on winding, two-lane country roads, I could appreciate his view of our interstate system.  Indeed, the Interstate Highway System works efficiently--outside of urban areas during rush hour.  Inside urban areas, the daily result is often looks like this:



Congestion, whether caused by rush hour demand, vehicle crashes, or both undermines the time efficiency of highway travel between and within major cities.  Columnist George Will proclaims that the automobile represents freedom and liberty.  It does, but not always.  Don't get me wrong.  I love cars.  I love mine.  I love driving mine--when I actually move and when I'm not exhausted by my long commute.  We enhance freedom and liberty by giving people transportation options, when the automobile is part of a more balanced transportation network.  My kids--like most others today--have less freedom and liberty than I had because they can't walk or bike to school.  The elderly, who can no longer drive and are trapped either in subdivisions or in old age homes, have less freedom and liberty than those of earlier generations, who could walk safely to a grocery store.  When people take high quality rail transit (when it's available), they free-up road capacity so we can enjoy our cars more and so that goods can reach market more quickly.  Only a minority of Republicans nationally oppose Federal high speed rail funding.

Governor Rick Scott's rejection of high speed rail was rich in ironies.  I found it ironic that, the day the Florida Supreme Court denied two State Senators' Petition to require him to accept federal funds (the correct legal result), I paid $3.79 a gallon for a fill-up.  I found it ironic that we're sending transportation dollars awarded to Florida to other States while Middle East destabilization is driving up fuel costs (which harms our economy no less than a tax increase). 

I found it ironic that Robert Poole and the California-based Reason Foundation (which most Floridians had never heard of before) could have more influence with a flawed anti-high speed rail report than the combined influence of the Mayors of Orlando, Tampa, Lakeland, and Miami, the Republican chair of the House Transportation Committee, John Mica, a strong majority of the Republican-dominated Florida Senate, every major newspaper in the State of Florida, and the Governor's own Department of Transportation (which increased its high speed rail ridership estimate from 2.4 million to about 3.0 million). 

Ironic that Florida's infrastructure is falling behind that of the Third World. 

Argentina is moving ahead with a high speed rail line linking Buenos Aires to the major cities of Rosario and Cordoba. 

As Brazil readies to accept bids for new high speed rail line, a Korean consortium offers its case for winning the bidding process:

China's new bullet train:




The new South African high speed rail:



Although not part of the Third World, here's a news report on Russia's high speed rail line:

Saudi Arabia, Taiwan, the Czech Republic, Morocco, are among other developing nations either planning or already operating high speed rail.

A decade from now, with Florida falling farther and father behind the rest of the world, especially the Third World, we will see another push for high speed rail.  Unfortunately, the capital costs of construction on the State budget will far exceed, by billions, what Floridians would likely have had to pay this time -- $0.00.

One final irony--a decade from now, Florida taxpayers will still pay, through their Federal income taxes, interest on the $2.4 billion in borrowed Federal stimulus dollars approved for Florida high speed rail, but without receiving any of the benefits. 

UPDATE--March 9, 2011--A ridership study commissioned by the Florida Department of Transportation found that Florida High Speed Rail would have turned a $10 million operating profit its first year.  No surprise to the prospective bidders, who make high speed rail operating profits worldwide. 

UPDATE--Sept. 1, 2011--Click HERE for a link about Turkey's new high speed rail line.

UPDATE--Oct. 26, 2011--Click HERE for a link about Uzbekistan's new high speed rail line. 

Altman v. Scott--Excerpts from the Petition

Senator Thad Altman (R-Melbourn), who believes in strictly construing the Florida Constitution, and Senator Arthenia Joyner (D-Tampa) filed a Petition for Writ Quo Warranto (a common law inquiry into the authority of a public official), a Writ of Mandamus (an Order to perform a ministerial act), or other injunctive relief in the Florida Supreme Court.  The Senators are asking the high court to order Governor Scott to perform the ministerial act of accepting high speed rail federal funds.  Below you'll find excerpts from the 25 page brief, to which the Florida Supreme Court ordered a response by noon today.  Click HERE to read the entire brief. 

Court decisions are inherently unpredictable.  A University of Florida law professor suggested in the Sentinel the Governor will claim the Senators lack standing to bring the Petition.  Standing to bring a court action requires an injury in fact.  In Coleman v. Miller, 307 U.S. 433 (1939), the United States Supreme Court held, "We think that these senators have a plain, direct, and adequate interest in maintaining the effectiveness of their votes."  The Court reaffirmed, "“[O]ur holding in Coleman stands... for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”  Raines v. Byrd, 521 U.S. 811 (1997). 

The legal arguments below appear strong: 

Basis for a Writ Quo Warranto, Writ of Mandamus, or Other Injunctive Relief

Instead of completing the ministerial act of accepting the funds for the high speed rail project as he was required to do, Respondent instead requested that the monies be used for other Florida infrastructure projects. Such a claim of authority and the attempt to (1) reject the monies appropriated by the Florida Legislature; (2) reject financing specifically mandated by the Florida Rail Act; and (3) refuse to comply with the express directions of the High Speed Rail Act, all exceed Respondent's constitutional authority.

Governor Scott Wants to Spend $2.4 Billion in Stimulus Funds Elsewhere

It is clear that Respondent is not philosophically opposed to taking the ARRA (American Recovery & Reinvestment Act) monies. He wants the $2. 4 billion for Florida. He just refuses to apply it to high speed rail. Under federal law, the monies simply cannot be used for other projects.

Florida Supreme Court Precedent: Legislature Has Exclusive Authority to Appropriate Funds and Reduce Funding

As this Florida Supreme Court ruled in Chiles v. Children A, B, C, D, E, and F, et al., 589 So. 2d 260 (Fla. 1991), "This Court has long held that the power to appropriate state funds is legislative and is to be exercised only through duly enacted statutes." .... "Such a provision secures to the Legislative (except where the Constitution controls to the contrary) the exclusive power of deciding how, when, and for what purpose the public funds shall be applied in carrying on the government.... "Furthermore, the power to reduce appropriations, like any other lawmaking, is a legislative function." (Emphases in original). As such, the right, authority, and the power to fund the aforesaid appropriations, and the decision to reduce such funding, whether by state or federal funds, for the implementation of the Florida Rail Act lie exclusively with the Florida Legislature - not with the Governor. Simply stated, whether such funds derive from the state or from federal funds granted to the state, the appropriation of such funds constitutionally lies exclusively with the Florida Legislature.

High Speed Rail in Florida's Comprehensive Plan Since 1985

While there have been amendments and changes to the State Comprehensive Plan since 1985, the high speed rail policy has retained its vitality and continues to be an integral part of the transportation element of the State Comprehensive Plan.

Governor Cannot Lawfully Interfere with the Florida Rail Enterprise

The Florida Legislature intended that, once appropriations were made and authorized by the Legislature, the Florida Rail Enterprise shall have the full authority to comply with its legislative mandate, free from outside interference.

Additionally, and importantly, the Legislature crafted the legislation so that the Florida Rail Enterprise function without interference from other executive branch officials. "Except as otherwise expressly provided [by the Florida Act], none of the powers granted to the [Florida Rail E]nterprise under [the Florida Rail Act] are subject to the supervision or require the approval or consent of any municipality or political subdivision or any commission, board, body, bureau, or official." § 341.839, Fla. Stat. (2010). (Emphasis added). The Governor is an official within the meaning of the Act, and is not permitted to interfere with the implementation of high speed rail.

The delegation of the power and independence to the Florida Rail Enterprise was an intentional element of the Legislature's policy because the evaluation and selection criteria for the award of ARRA funds to the Florida Rail Enterprise included a requirement that the Florida Rail Enterprise "affirmatively demonstrate that it has or will have the legal. .. capacity to carry out [high-speed rail.]"  See High-Speed Intercity Passenger Rail "Notice of Funding Availability," Fed. Reg. Vol. 74, No. 119 at 29921 (June 23,2009).

Had the Legislature intended for the Governor to exercise significant control of the HSR System, it would have simply delegated authority over the system to the Secretary of the Florida Department of Transportation, the Governor, or the Executive Office of the Governor.

High Speed Rail Act Is Mandatory

The High Speed Rail Act requires the Florida Rail Enterprise to finance and construct the high speed rail system for the state. There is no discretion. As such, the authority to, and the requirement to, implement and execute upon the financing of high speed rail is imposed upon the Florida Rail Enterprise. Both explicitly and implicitly, the Legislature has set forth a specific methodology for implementing high speed rail. The Florida Rail Enterprise's executive director has no discretion to reject such financing as determined by the Legislature.

The Governor has no authority to refuse to implement the directives of the state law, especially funding that has already been applied for and awarded to the State of Florida when state law mandates the High Speed Rail Enterprise" ... shall locate, plan design, finance, construct, maintain, own, operate, administer, and manage the high -speed rail system in Florida." § 341. 822( 1) Fla. Stat.

The appropriations and the funds which are the subject of this Petition represent the appropriations to implement the high speed rail elements in the State Comprehensive Plan and the High Speed Rail Act. The Governor has no authority to refuse to implement the directives of the state law, especially funding that has already been applied for and awarded to the State of Florida when state law mandates the High Speed Rail Enterprise" ... shall locate, plan design, finance, construct, maintain, own, operate, administer, and manage the high -speed rail system in Florida." § 341. 822( 1) Fla. Stat.

Policy Reason: Hindrance of Major Infrastructure Planning, Financing, and Construction

If every newly elected governor decided to stop the major infrastructure project which [was] underway when he was elected, after the State of Florida has adopted by state law a policy to build the major infrastructure project; the Legislature has appropriated the funds for the project and directed the construction of the project, Florida will not be able to plan, finance, and construct the major infrastructure projects it requires for its people and its future.

Click HERE for a summary of the Governor's Response and HERE to read the entire Response.

Click HERE for a summary of the Senators' Reply Brief and HERE to read the entire Reply Brief.

UPDATE--March 4--Lakeland attorney Kemp Brinson has a good analysis of the oral argument at THIS LINK.  A granting of the Senators' Petition would surpise me.

SECOND UPDATE--March 4--Click HERE for a link to the Supreme Court's Order denying the Petition.  The Order does not contain legal analysis.