This story originally appeared on PlanPhilly.
Outside Courtroom 426, a small shoal of bicycle-safety advocates gathered in a semicircle, seemingly dazed by their unexpected good fortune.
“This is definitely a good outcome,” said Kyle Leach, a Point Breeze resident and the plaintiff in the lawsuit that brought them all here.
“This could be a trend,” said Randy LoBasso, communications director for the Bicycle Coalition of Greater Philadelphia.
“This could be big for little problems,” said Bob Previdi, the Bike Coalition’s policy coordinator.
“I did not know this was an option,” said an elated Stuart Leon, Leach’s attorney.
By this, they meant a small upgrade to the bicycle lane on 13th Street just north of Spruce — the addition of plastic delineator posts in front of the new Fairfield Inn & Suites there.
This was the tentative settlement of a lawsuit, an accord reached Wednesday between Leon’s client and ParkOps, the company that handles valet parking for Fairfield.
The parties agreed to postpone the lawsuit for a month while they work on fulfilling their sides of the bargain to drop the suit, which seeks a court order requiring the valets to keep the bike lane clear of cars. ParkOps agreed to cover the cost of installing the delineator posts, and Leon, with the help of the Bicycle Coalition, will handle the paperwork.
Where politicians won’t, the courts might
If the city signs off on the plan, and a small section of the 13th Street bike lane is protected, it will likely be the first time in Philadelphia that a lawsuit between private entities forced a change, however small, in public policy. If this works, cycling advocates may have discovered a way around their long-blocked efforts to improve Philly’s bike infrastructure: litigation.
For years now, bike-safety advocates have pressed Philadelphia’s elected officials to build more bike lanes and protect them with physical barriers such as plastic delineator posts or parked cars. Over the course of the last year, on-street protesters have added their weight to the lobbying push for protected bike lanes. Though the city has added 3.5 miles of protected bike lanes since Mayor Jim Kenney took office, that’s still far short of the 30 miles he pledged to build as a candidate. The gulf between the mayor’s promise and the city’s performance has frustrated cyclists, who have also had little luck convincing a skeptical City Council to support bike infrastructure.
“I am willing to file these lawsuits wherever else I think it can result in a protected bike lane,” said Leon.
Next up might be Wawa, because of its location on the corner of 22nd and South streets. Leon said he already has a client who was struck by a car after being forced out of the 22nd Street bike lane to avoid a Wawa customer’s parked car. According to Leon, he’s already in talks with the popular convenience-store chain about what can be done to improve the situation, which inspired a “human-protected” bike lane protest earlier this summer.
When asked about the negotiations with Leon, Wawa said, in a statement: “While we are not aware of the specific discussions mentioned in your inquiry, we are currently working with the city and the neighborhood associations on solutions to protect the bike lane on 22nd Street. We’re always committed to being a good neighbor at each of our locations and we believe that includes working with neighbors and local officials to ensure our stores best fit the needs of the communities we serve.”
The road to the courts
Kyle Leach reached out to Leon soon after the Fairfield opened for business. Guests were parking their cars in the bike lane, which runs right in front of the hotel, on the east side of 13th Street, even though the permitted valet stand is set up across the street from the hotel, on the west side of 13th. Leon, a plaintiff’s attorney whose practice focuses exclusively on representing cyclists who have been hit while on their bikes, filed a lawsuit.
ParkOps co-founder Dan Bell responded immediately — he put out signs and little plastic stands along the bike lane’s edge, essentially creating a protected bike lane. “Couple hours later, everything seemed pretty satisfactory,” Bell said.
Problem solved — until the cops told Bell he needed a permit for his solution and forced ParkOps to move the signs and stands onto the sidewalk. Almost immediately, guests resumed stopping their cars in front of the hotel, in the bike lane.
As Leon and Bell continued to negotiate a settlement, Wednesday’s initial hearing approached. It was just before the hearing when Leon said he had spoken with Deputy Streets Commissioner Rich Montanez. According to Leon, Montanez said that if ParkOps agreed to pay for installing delineator posts, the Streets Department would sign off on the paperwork.
City officials declined to comment, saying they had not yet “’received any formal paperwork… regarding this matter.”
In an email, Leon wrote that staff in the office of Councilman Mark Squilla, who represents the area, facilitated the arrangement with the Streets Department.
Bell said he’s happy to pick up the $3,500 tab for hiring a contractor to install delineator posts in front of the hotel. “A lot of our employees, myself included, we utilize the bike zones around the city and we understand,” said Bell. “We’re all for [protected bike lanes] — we want to make sure Uber, Lyft, and other random vehicles aren’t pulling in the zone and blocking that bike lane.”
The road ahead might be bumpy
Outside the courtroom, Bell’s attorney, Damian Sammons of the Comegno Law Group, was decidedly less sanguine about the situation. “We didn’t need to be here,” Sammons said to Leon, complaining that Leon waited until the hearing date to share the contents of his conversation with Montanez.
Later, Sammons expounded on his frustrations. “Leon’s trying to enjoin ParkOps,” he said. “But in actuality, it’s just regular Philadelphians and out-of-towners parking on the right side of the street because they see it’s next to the hotel.”
According to Sammons, Leon sued the wrong guy — neither Bell’s company nor Fairfield are breaking the law, it’s the drivers. “Dan [Bell] is taking it upon himself to make something happen that isn’t his fault,” said Sammons. “But he supports the bikers, so that’s why he’s doing it.”
Marriott International, which owns Fairfield, has made no apparent effort to mount a legal defense. The company declined to comment.
The lawsuit alleges that ParkOps and Fairfield were, in fact, continuing to operate a valet service in the bike lane. In addition to ParkOps signs directing cars away from the bike lane, Sammons said the valets ask drivers who still stop in it to circle around the block and park in the valet zone on the other side of the street.
Sammons also noted that the speculative nature of the alleged risk to cyclists — Leach was not injured — would have made it less likely that a judge would grant an injunction.
More fundamentally, Sammons said, there’s only one entity that has the power to actually fix this problem, and they were left out of the case. “This lawsuit should have been filed against the City of Philadelphia.” After all, the settlement is contingent on getting approval from the Streets Department to install the posts.
For the cycling advocates, replicating this outcome in future lawsuits may be difficult.
First, Leon himself admitted that this lawsuit relied on the valet parking zone. “We know that other activity related to the hotel was also occurring in the bike lane, including taxi cab pick-up and drop-offs, Uber and Lyft pick-ups and drop-offs, linen service to the hotel and restaurant within it, and food delivery to and from,” he said. “There is very little I could do directly about everything but the parking valet.”
The lawsuit relies on the allegation that the valet zone, designated on the left side of the street, was purportedly being run on the right side of the street, where the bike lane is.
Though Sammons and Bell vigorously dispute that, it is, at least, a disputable fact. Without the valet-zone issue, however, the argument for holding individual businesses responsible for the actions of their customers or vendors becomes even more attenuated. Bike-lane backers would have to argue that a company like Wawa was acting negligently by failing to prevent its customers from parking in the bike lane. That would require convincing the court that Wawa breached a duty it owed to cyclists to install delineator posts — in other words, that it had an obligation to seek the city’s approval to pay for and build public infrastructure.
Still, lawyers cost more than plastic, so the threat of litigation may be all the cyclists need to convince companies to pony up for the improvements.
“It’s a noble cause,” Sammons said. “But what’s going to happen, he’ll get a lot of pushback from people who will rightfully say, ‘I’m being sued, but we can’t do anything without the Streets Department.’”
If that happened, Sammons warned, this saga, in which frustrated cyclists give up on the representative branches of city government and appeal to the courts for protection, could come full circle.
“Some businesses are going to call their City Council people, and there’ll be some serious push back on bike lanes.”