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38 Sylvester v. Chicago Park District,488 for example, the court held that the applicability of the recreational use statute did ânot depend only on the plaintiffâs active engagement in a recreational activity at the time of the injury.â489 In the Boaldin case, supra, the plaintiff argued that the area in question had to be designated as recrea- tional property. The plaintiff argued that if the recrea- tional use statute âis applied to property other than that which has been expressly designated as recrea- tional, then governmental entities would also escape liability for personal injuries arising on sidewalks or public streets, since such areas are sometimes used for recreational purposes.â490 The court rejected the argu- ment, stating that governmental entities had an inde- pendent duty âto maintain public streets and public sidewalks in a condition reasonably safe for useâ and that a holding that the recreational use statute applied âin the present case will not affect or vary the responsi- bility of governmental entities to maintain public streets and public sidewalksâ¦.â491 D. Immunity When Recreational Use Is Restricted A public authority may wish to limit the use of a des- ignated bikeway in some manner. The courts have held that a landowner is not required to open its property to all persons;492 that land open only to a particular class of the public is still within the recreational use statute;493 and that a landowner may place reasonable restrictions on the use of its land.494 In some jurisdictions a land- owner still has immunity even if the landowner has prohibited recreational use495 or has placed no trespass- that the injury occur as the result of recreational activity), affâd, 286 Kan. 809, 189 P.3d 517 (2008). 488 179 Ill. 2d 500, 689 N.E.2d 1119 (1997), rehâg denied (Feb. 2, 1998). 489 Id. at 508, 689 N.E.2d at 1124. 490 Boaldin v. Univ. of Kan., 242 Kan. at 292, 747 P.2d at 814. 491 Id. 492 Mansion v. United States, 945 F.2d 1115, 1117 (9th Cir. 1991). 493 Herring v. Hauck, 118 Ga. App. 623, 624, 165 S.E.2d 198, 199 (Ga. 1968) (stating that an owner may âpermit the free use of his facilities or land by the public generally or by a particu- lar class of the publicâ). 494 Scrapchansky v. Town of Plainfield, 226 Conn. 446, 452, 627 A.2d 1329, 1332 (Conn. 1993). 495 Albright v. Metz, 88 N.Y.2d 656, 663, 672 N.E.2d 584, 588, 649 N.Y.S.2d 359, 363 (N.Y. 1996) (holding that the rec- reational use statute applied because access regulations were targeted at unauthorized dumping in the facility rather than banning potential public recreational use); Bloom v. Brady, 171 A.D. 2d 910, 566 N.Y.S.2d 783 (N.Y. App. 3d Depât 1991); Friedman v. Grand Cent. Sanitation, Inc., 524 Pa. 270, 271, 571 A.2d 373-373 (Pa. 1990) (holding that the recreational use statute immunized the owner from liability even though the land was posted with âNo Trespassingâ signs). ing signs and barriers on the property.496 However, there are cases from other jurisdictions holding that under these circumstances a landowner does not have the protection of the recreational use statute.497 The prevailing view appears to be that a recreational use immunity statute may apply to property that has both a recreational and a nonrecreational use or pur- pose. There is authority that a recreational use statute applies even without a property being primarily used for recreational purposes. Furthermore, a bicycle acci- dent and injury may not have to be the result of recrea- tion for the recreational use statute to apply and im- munize a public entity for a bikeway claim. The majority view also appears to be that a bicyclistâs sub- jective intent (e.g., recreation or commuting) at the time of the accident is not relevant to the applicability of a recreational use statute. Guidance A public entity in a state in which the stateâs recrea- tional use statute applies or has been held to apply to bicycles will want to determine whether its courts follow what appears to be the majority view that a bikeway does not have to be exclusively or even primarily for rec- reational use for a public entity to have recreational use immunity. Even the minority view appears to be that as long as a recreational use is more than merely inciden- tal, a public entity may be protected from liability under a recreational use statute regardless of whether a plain- tiff alleges faulty design or maintenance as the proxi- mate cause of a bikeway accident. SECTION VIII. LOCAL LAW AND POLICY REGARDING THE DESIGNATION OF BIKEWAYS A. Localitiesâ Laws and Policies Regarding Bikeways Although there appears to some commonality in the approach to the designation of bikeways, there are also some significant differences. This section discusses whether localities have laws and policies regarding the designation of bikeways; the types of bikeways; the pub- lic entities responsible for designating bikeways; design 496 Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 629, 547 N.W.2d 602, 603 (1996) (no signs); Larini v. Biomass In- dustries, Inc., 918 F.2d 1046, 1048, 1049 (2d Cir. 1990) (hold- ing that the owner had immunity and that although the prop- erty was posted with âNo Trespassingâ signs and blocked by both a metal gate and a wall of snow, the landownerâs efforts were irrelevant âbecause the statute extends to landowners whose land is available for recreational pursuitsâ). 497 Hughes v. Quarve & Anderson Co., 338 N.W.2d 422, 427 (Minn. 1983) (holding that âthe Recreational Use Statute has no application where the defendant landowner does not offer the quarry pond in question for public use and, indeed, claims here that it has discouraged the public from using the pond as a public facilityâ); Ga. Power Co. v. McGruder, 229 Ga. 811, 812, 194 S.E.2d 440, 441 (Ga. 1972) (holding that the recrea- tional use statute did not apply when the owner had expressly denied use of the land by posting âkeep outâ signs in the area).
39 and maintenance guidance for bikeways; whether pub- lic entities have had litigation over their decisions whether to designate bikeways; public entitiesâ experi- ence with tort liability and bikeways; and public enti- tiesâ recommendations for localities that are considering bikeways. Some states have enacted a bikeway or bicycle transportation act.498 In Illinois, the legislature has rec- ognized that there is an âurgent need for safe bikewaysâ for both children and adults for transportation and for exercise and recreation,â and a need âto coordinate plans for bikeways most effectively with those of the State and local governmentsâ by way of âa single State agency, eligible to receive federal matching funds.â499 The Illinois Department of Transportation is responsi- ble for developing and coordinating a state-wide bike- ways program and officially designates bikeways throughout the state.500 In Maryland, the Department of Transportation has been involved through one of its modal administrations, the State Highway Administration,501 in designating bikeways, including bicycle lanes on streets and high- ways.502 Massachusetts law requires the Massachusetts Highway Department to take all reasonable provisions for the accommodation of bicycle and pedestrian uses in the planning, design, construction, reconstruction, or maintenance of any projects it undertakes.503 Massachu- setts reports that each project funded by state or federal funds is subject to review by the Massachusetts High- way Department Bicycle and Pedestrian Accommoda- tion Engineer.504 It is the Engineerâs responsibility to make certain that bicycles traveling on streets and highways are accommodated to the best extent possible. In 2009, 116 projects had been reviewed for bicycle ac- commodations. In 2008, 156 projects were reviewed for bicycle accommodations. Although projects consist of bike paths, shared use paths, and roadway or bridge projects, the majority of the projects were roadway and 498 See, e.g., Illinois (605 ILL. COMP. STAT. 30/0.01, et seq.) (Bikeway Act) and California (CAL. STS. & HW. CODE §§ 890â 894.2) (California Bicycle Transportation Act). 499 605 ILL. COMP. STAT. 30/1. 500 605 ILL. COMP. STAT 30/2(a). 501 Information supplied by the Maryland Attorney Gen- eralâs Office. 502 The Maryland Attorney Generalâs Office advised that in Maryland the authority for designating bikeways and bicycle lanes includes: MD. CODE ANN. §§ 2-602 (transportation arti- cle) and 21-101(c), (d), and (e) (defining bicycle path, bicycle way, and bike lane); the Maryland Department of Transporta- tionâs 20-year Bicycle and Pedestrian Access Master Plan (Goal No. 1); 2007 Bicycle and Pedestrian Guidelines; and Perform- ance Measure 16 of the State Highway Administrationâs Fiscal Year 2008â11 Business Plan (Objective 2.3). 503 MASS. GEN. LAWS ch. 90 § 2A. 504 Information supplied by the Executive Office of Trans- portation Public Works, Massachusetts Highway Department, Boston, Mass. bridge projects. All projects have the same review proc- ess as outlined in the Project and Development Design Guide. Final approval may be given at the 25 percent Design Stage; no further review is required unless there is a change in the scope of the project. The Minnesota Department of Transportation (MnDOT) advised that in Minnesota a bicycle is a le- gally recognized vehicle and its use is restricted only in specific circumstances. MnDOT reported that it was unaware of the denial of any formal request for the des- ignation of a bikeway. North Carolina has laws and policies regarding the designation of bikeways505 and has been involved in des- ignating them.506 According to the Washington State Department of Transportation (WSDOT), most bicycle travel occurs on highways and streets without a bikeway designation. In Washington, the streets are considered to be adequate for safe and efficient bicycle travel; special signing and pavement markings for bicycles are deemed unneces- sary.507 However, in King County, Washington, the county has both approved and denied requests to desig- nate bike lanes on its roadways. In Boulder County, Colorado, on-street bikeways and road shoulders are an integral part of Boulder Countyâs transportation system.508 However, Boulder County does not designate bikeways or bicycle lanes on streets or highways, although it does provide a map of on-street bikeways and other information at boulder- county.org\transportation\bikeways. As a matter of policy, the Boulder County Transportation Department adds shoulders for bike use to all roads receiving a pavement overlay if that road has historically experi- enced significant bike use. The county currently has 43 mi of shoulder improvements and plans another 39 mi. B. Types of Bikeways A bikeway is a generic term for any road or path that is specifically designated in some manner and open to bicycle travel, regardless of whether such facilities are for the exclusive use of bicycles.509 A designated bikeway may be used for recreational or commuting purposes. Legislation may classify bikeways; for example, in Il- linois a bikeway is defined as 505 http://www.ncdot.org/transit/bicycle/laws/laws_ bikewayact.html; http://www.ncdot.org/transit/bicycle/laws/ laws_bikepolicy.html; http://www.ncdot.org/transit/bicycle/ laws/laws_resolution.html; http://www.fhwa.dot.gov/ environment/bikeped/design.html. 506Information supplied by the North Carolina Department of Transportationâs Office of General Counsel. See http://www.ncdot.org/transit/bicycle/projects/highlights/projects _highlights_intro.html. 507 WASH. STATE DEPâT OF TRANSP., DESIGN MANUAL M 22- 01, at 1020-4 (2001), available at http://www.wsdot.wa.gov/fasc/Engineering Publications. 508 Information supplied by the Boulder County Attorneyâs Office. 509 AASHTO Guide, supra note 3.
40 (1) a shared facility whereby both vehicles and bicycles may operate on the through lanes, parking lanes or shoulders of a street or highway, (2) a pathway on a street or highway right-of-way, on public land other than a street or highway right-of-way, or on lands not owned by a municipality, local unit of government, county, or the State of Illinois or one of its agencies or authorities by agreement with the owner for a minimum duration of 20 years.510 In California the state transportation law defines a bikeway as all facilities that provide primarily for bicy- cle travel and establishes three categories of bikeways. (a) Class I bikeways, such as a âbike path,â which provide a completely separated right-of-way designated for the exclusive use of bicycles and pedestrians with crossflows by motorists minimized. (b) Class II bikeways, such as a âbike lane,â which provide a restricted right-of-way designated for the exclusive or semiexclusive use of bicycles with through travel by mo- tor vehicles or pedestrians prohibited, but with vehicle parking and crossflows by pedestrians and motorists per- mitted. (c) Class III bikeways, such as an onstreet or offstreet âbike route,â which provide a right-of-way designated by signs or permanent markings and shared with pedestri- ans or motorists.511 According to Minnesotaâs Bikeway Facility Design Manual, [b]ikeways include both on-road and off-road facilities, in- cluding bike lanes, paved shoulders, shared lanes, wide outside lanes, and shared use paths. Bike lanes, paved shoulders, and wide outside lanes allow bicyclists and motorists to operate parallel to each other in the roadway, maintaining a separation, without requiring motorists to change lanes to pass bicyclists.512 In sum, there are four basic types of bicycle facilities: shared roadways (no bikeway designation) on which there is bicycle use on the existing street system with- out signing or striping for said use;513 signed, shared roadways, which are designated bicycle routes and pro- vide continuity to other bicycle facilities (such as bicycle lanes), or the signage designates the preferred route through a transportation system; bike lanes, which may be striped; and shared use paths.514 510 605 ILL. COMP. STAT. 30/2(a). 511 CAL. STS. & HY. CODE § 890.4 (2009). 512 MINN. DEPâT OF TRANSP., BIKEWAY FACILITY DESIGN MANUAL, ch. 3 (General Design Factors), at 60, available at: http://www.dot.state.mn.us/bike/pdfs/Chapter%203%20General %20Design%20Factors%20Bw.pdf. 513 Ohio Department of Transportation Design Guidance for Roadway-Based Bicycle Facilities (Oct. 2005), found through http://www.dot.state.oh.us/Services/Pages/Bike.aspx. According to the Ohio Department of Transportation, wide curb lanes perform well as shared roadways since motorists are able to pass bicyclists without crossing the center line. 514 Id. C. Responsibility for Designating Bikeways In California, local authorities, such as a city, county, or other local agency, may be expressly author- ized by the state to establish bikeways and to acquire the land necessary to establish bikeways.515 In addition, California does not prohibit local authorities from establishing, by ordinance or resolution, bicycle lanes separated from any vehicular lanes upon highways, other than state high- ways as defined in Section 24 of the Streets and High- ways Code and county highways established pursuant to Article 5 (commencing with Section 1720) of Chapter 9 of Division 2 of the Streets and Highways Code.516 By statute, California required that [t]he Association of Bay Area Governments shall develop and adopt a plan and implementation program, including a financing plan, for a continuous recreational corridor which will extend around the perimeter of San Francisco and San Pablo Bays. The plan shall include a specific route of a bicycling and hiking trail, the relationship of the route to existing park and recreational facilities, and links to existing and proposed public transportation fa- cilities.517 The California Department of Transportation coop- erates with county and city governments to establish bikeways and to âestablish minimum safety design cri- teria for the planning and construction of bikeways and roadways where bicycle travel is permitted.â518 Mini- mum safety design criteria include âthe design speed of the facility, minimum widths and clearances, grade, radius of curvature, pavement surface, actuation of automatic traffic control devices, drainage, and general safety.â519 A city or county may prepare a bicycle trans- portation plan and submit it to the applicable county transportation authority.520 The authority then may submit an approved plan to the state transportation department and also may seek matching funds from the state to develop a city or county bikeway.521 The law requires that a city or county provide 10 percent of the projectâs total cost.522 Under the Illinois Bikeway Act,523 the state Depart- ment of Transportation, whose annual appropriation is to âinclude funds for the development of bicycle paths and a State-wide bikeways program,â524 is principally responsible for designating bikeways in cooperation with units of local government.525 515 CAL. STS. & HY. CODE § 891.8 (2009). 516 CAL. VEH. CODE § 21207 (2009). 517 CAL. PUB. RES. CODE § 5850 (2009). 518 CAL. STS. & HY. CODE § 890.6 (2009). 519 Id 520 Id. § 891.4(a) (2009). 521 Id. 522 Id. § 891.4(b) (2009). 523 605 ILL. COMP. STAT. 30/1 (2009). 524 605 ILL. COMP. STAT 30/3 (2009). 525 605 ILL. COMP. STAT 30/4 (2009).
41 In Georgia, the state Department of Transportation is tasked with designating bikeways that are publicly owned and maintained.526 Bikeways are âpaved paths, ways, or trails designated and signed as bicycle routes and located in urban, suburban, or rural areas.â527 Local governing authorities determine bikeway routes within their jurisdiction, but the state transportation depart- ment must approve the routes.528 As an alternative to determinations by local governing authorities, the transportation department is authorized to construct bikeways after a determination by the stateâs Depart- ment of Natural Resources.529 A local governing author- ity or private association may construct a bikeway in the state as long as property is not acquired by eminent domain.530 In Ohio, the responsibility for all on-road bicycle fa- cilities belongs to the local public agency except for bike lanes on state highways in rural areas.531 As for cities and counties, Denver, Colorado, has a Bicycle Master Plan that provides an in-depth analysis, identification, and review of its local bikeways.532 Den- verâs bikeway policy is influenced by Denverâs Strategic Transportation Plan.533 The Denver Planning Board undertakes the process for designating bikeways.534 A 25-member Bicycling Advisory Committee meets monthly to âoversee the implementation of the Denver Bicycle Master Planâ; works with the city to develop engineering standards for street, roadway, and trail designs to accommodate bicycles; and reviews roadway and trail projects.535 Phoenix, Arizona, has a system of about 651 mi of bike routes and on-street bike lanes, as well as street designations on maps for bicycles.536 Phoenix advised that rather than having laws and regulations applicable to bikeway designation, it has a Traffic Operations Handbook for the designation of bicycle facilities. 526 GA. CODE ANN. § 12-3-114(1)(G) (2009). 527 Id. 528 Id. 529 Id. § 12-3-115(a) (2009). 530 Id. § 12-3-115(b) (2009). 531 WASH. STATE DEPâT OF TRANSP., DESIGN MANUAL M 22- 01, (2001), available at http://www.wsdot.wa.gov/fasc/ Engineering Publications. 532 City of DenverâBicycle Transportation, available at http://www.denvergov.org/Bicycle_Program/BicycleMasterPlan Update/tabid/378656/Default.aspx. 533 Id., available at http://www.keepdenvermoving.com. 534 Id., available at http://www.denvergov.org/TabId/392084/default.aspx. 535 Id., available at http://www.denvergov.org/Boards_and _Commissions/BoardsandCommissions/ BoardsandCommissions4/tabid/378947/Default.aspx. 536 On-street marked bike lanes total 379 of these miles. D. Design and Maintenance Guidance for Bikeways The AASHTO Guide, supra, provides an overview of the planning considerations for bicycles, discusses facil- ity improvements and the factors to consider, provides guidelines for the construction or improvement of high- ways for the accommodation of bicycles or the construc- tion or improvement of bicycle facilities, and makes recommendations for the operation and maintenance of bicycle facilities.537 The AASHTO Guide states clearly that the guidelines are not intended to be âstrict stan- dards.â This guide provides information to help accommodate bi- cycle traffic in most riding environments. It is not in- tended to set forth strict standards, but, rather, to pre- sent sound guidelines that will be valuable in attaining good design sensitive to the needs of both bicyclists and other highway users. However, in some sections of this guide, design criteria include suggested minimum guide- lines. These are recommended only where further devia- tion from desirable values could result in unacceptable safety compromises.538 There may be special statutory provisions applicable to bikeways in a stateâs motor vehicle or highway code.539 For example, in California, three provisions in the Streets and Highway Code are applicable to grates and bicycles. Section 161 provides that â[o]n construc- tion projects, the department shall install on the sur- face of state highways upon which the operation of bicy- cles is permitted only those types of grates which are not hazardous to bicycle riders.â540 With respect to coun- ties, the code provides that only those types of grates that are not hazardous to bicycle riders are to be in- stalled on county highways on which bicycles are per- mitted.541 A similar provision applies to cities.542 Massachusetts advises that its guidelines for bicycle accommodations are covered by the 2006 Massachusetts Highway Department Project and Development Design Guide and the 1999 AASHTO design guidelines for bi- cycle accommodation. In Massachusetts, the Bicycle and Pedestrian Accommodation Engineer is a member of the Design Exception Review Committee. This com- mittee is composed of representatives from all sections of the Massachusetts Highway Department, with each member bringing his or her expertise to the committee. The committee reviews and makes recommendations for all projects that do not meet minimum design criteria or requirements. 537 AASHTO Guide, supra note 3, at 1. 538 AASHTO Guide, supra note 3, at 2. 539 See, e.g., CAL. VEH. CODE §§ 21200-21212. 540 CAL. STS. & HY. CODE § 161. 541 Id. § 906.5. 542 Id. § 1805.5 (requiring that in construction contracts, âthe legislative body of a city shall install on the surfaces of city streets upon which the operation of bicycles is permitted only those types of grates which are not hazardous to bicycle ridersâ).
42 In Minnesota, MnDOTâs Bikeway Facility Design Manual covers such topics as bicycle network planning coordination, general design factors, on-road bikeways, shared use paths, traffic controls, and maintenance. The purpose of Minnesotaâs manual is âto provide engi- neers, planners, and designers with a primary source to implementâ¦Mn/DOTâs vision and mission for bicycle transportation in Minnesotaâ and to provide âcitizens, developers, and others involved in the transportation planning process, guidance on the critical design and planning elements to promote bicycle safety, efficiency, and mobility.â543 The Nevada Department of Transportation (NDOT) recommends that urban destinations be located directly on or within a short distance of bikeways to encourage the use of designated bikeways.544 NDOT also states that designated bicycle facilities or shared roadways improve the safety of and provide convenience for bicy- clists.545 The North Carolina Department of Transportation (NCDOT) advises that it has denied requests in North Carolina for designated bike lanes on some highway improvement projects because of concerns about sub- standard design for the proposed bikeway or incompati- bility with overall traffic conditions on a given highway, for example, on a high-speed, high-volume, multilane arterial with complex interchanges or intersections. The Ohio Department of Transportation (ODOT) ad- vises that the designation of bikeways involves choosing a route and posting signs and being responsible for them and that a route should connect destinations. ODOT recommends that a map or plan be used to locate signed bike routes and further recommends that owner permission be obtained before posting signs.546 ODOTâs Design Guidance for Roadway-Based Bicycle Facilities covers maintenance of on-road bicycle facilities and states that the responsibility for all on-road bicycle fa- cilities belongs to city and county agencies unless the bikeway is on a state highway in a rural area.547 The manual identifies items that may require maintenance such as the removal of debris, filling of potholes or cracks, cutting of bushes, removal of gravel, and correc- tion of drainage problems. The manual states that signs should be checked periodically to verify that they are still in place and are readable and that pavement mark- ings should be checked for visibility. 543 MINN. DEPâT OF TRANSP., supra note 512, at 17 (updated Apr. 2008), available at http://www.dot.state.mn.us/bike/bikewaysdesignmanual.html. 544 Nevada State Bicycle Plan, for Nevada Department of Transportation, at VII-3 (2003), available at http://www.bicyclenevada.com/pdf_bpc/nvbikeplan.pdf. 545 Id. 546 Ohio Department of Transportation, supra note 513, available at http://www.dot.state.oh.us/Divisions/Local/Projects/bicycle/Desi gn%20Guidelines/RoadwayBasedFacies.pdf. 547 WASH. STATE DEPâT OF TRANSP., supra note 531, at 1020- 4. As for cities and counties, although Boulder County, Colorado, has an on-line map of streets that have shoulders, the county does not place signs indicating bikeways or bicycle lanes. Boulder County advised that because the county does not have specific standards for constructing shoulders for bicycle use, the county does not want to convey the impression that one road is safer than another for bicycle use. The policy in Phoenix is that all new arterial street cross-sections include space for on-street bike lanes and that bike lanes not be marked or signed unless a com- plete segment is provided. Phoenix also advises that the only times that bike lanes have not been established in recent years was when there was insufficient space or funds. King County in the State of Washington advises that its policy and guidelines applicable to bikeways are set forth in the King County Road Design and Construction Standards, which refer also to WSDOT and AASHTO design guidelines and standards. King County cited a specific instance in which the county did not approve the inclusion of bikeways as part of a roadway im- provement project because the reconfiguration of the roadway would result in the bikeways being substan- dard. E. Localitiesâ Reported Litigation over Bikeway Designations With respect to any litigation regarding the failure or refusal to designate a bikeway, only Massachusetts reported such a case. In Massachusetts a complaint was dismissed that had alleged that the Massachusetts Highway Department, inter alia, failed to provide all reasonable provisions that are authorized and required by Massachusetts law for the accommodation of bicycles and pedestrians in its reconstruction of a part of Massa- chusetts Avenue in Boston.548 Massachusetts advised that the highway department declined to provide a bike lane on the Massachusetts Avenue project because of vehicle demand. Although the intention was to accom- modate bicycles through the use of a shared right lane, turning lanes were needed to improve the level of ser- vice along the corridor. At the time of the filing of the complaint, the design of the project had been completed; citizensâ concerns did not become apparent until the advertising of the project, when construction was about to begin.549 As for other jurisdictions, Georgia, where a designa- tion must be included on the Georgia Bicycle and Pe- 548 Kruclaneyer v. Paiewonsky, Mass. Super. Ct., Suffolk, Mass., CA __, dismissed May 2009 (citing MGL, c. 90E § 2A). 549 Massachusetts advises that one of the initial, important steps for a project is holding a public hearing at or near the 25 percent project design stage when all interested parties may voice their concerns. Massachusetts states that the Bicycle- Pedestrian Accommodation Engineerâs opinion is that a timely and well conducted public hearing assists in reducing and re- solving citizensâ concerns about bicycle lanes and pedestrian pathways.