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Michigan Lawyers Weekly
'Roundabout' intersections aren't ADA compliant, says lawyer who's suing road commission
By Douglas J. Levy
September 10, 2007
Metro Detroit has been known for its advances not only in automobiles, but also the roads on which they're driven — from the world's first freeway (the Davidson in Highland Park and Detroit) to its first mile of paved concrete (Woodward Avenue between McNichols and Seven Mile roads in Detroit).
Now the area is catching up with a national trend, by gradually replacing conventional traffic-light intersections with "roundabouts." First used in Europe, the circular intersections stream traffic around a central island in a continuous flow, with vehicles yielding to circulating traffic.
But a Detroit-area attorney says the design of roundabouts as the Michigan Department of Transportation and the Road Commission for Oakland County (RCOC) have planned is too restrictive for the disabled and does not comply with Title II of the Americans with Disabilities Act of 1990 (ADA).
Because more roundabouts are being constructed as part of the extensive Northwestern Connector project in West Bloomfield Township, Richard H. Bernstein, of The Law Offices of Samuel I. Bernstein, is not looking to head off the road commissions at the path — rather, he wants pedestrians, particularly the disabled, to be given a path.
And a safe one at that.
So he, along with three plaintiffs with disabilities, has filed suit against the RCOC, seeking a declaratory judgment for an injunction until the RCOC can agree to build an acceptable plan to make Oakland County roundabouts accessible.
The complaint was filed Aug. 14 in U.S. District Court, just weeks before the Sept. 1 opening of the inaugural Northwestern Connector roundabout at Maple and Drake roads.
It says that the roundabout design is in "direct violation of the ADA and Section 504, which require that new and altered facilities constructed by, on behalf of, or for the use of state and local government entities be designed to be readily accessible to and usable by people with disabilities ..."
The plaintiffs are Michael Harris of Westland, who is executive director of the Novi-based Paralyzed Veterans of America Michigan Chapter and uses a wheelchair; Garret Gerson, a blind 18-year-old from Oak Park; and Jason Turkish, 20, of Huntington Woods, who is legally blind.
They don't seek compensatory damages, but, as the complaint reads, will request them "should it become necessary to encourage the Road Commission to comply with federal law."
The RCOC, in turn, has hired Dickinson Wright PLLC — the second largest law firm in the state according to Michigan Lawyers Weekly's 2007 Directory of Michigan's Largest Law Firms — to defend it.
The RCOC would not disclose how much it paid Dickinson Wright as a retainer, but the costs will be paid for by county taxpayers.
Bernstein, who is blind, is taking on the case pro bono and sees this matter as a precedent for the entire country.
"This case has a compelling national interest," he said. "There needs to be guidelines established by the federal courts telling municipalities, counties and government entities that if you want to build roundabouts, you have to meet certain appropriate safety guidelines in order to do it."
The way that blind people cross the intersection, Bernstein explained, is that they listen for parallel traffic to commence before beginning to walk across the street. But because traffic is in a continual flow at roundabouts, "the road commission is telling a blind person [he] should step off the corner and guess," he said.
"It's basically common sense," Bernstein added. "Blind people physically cannot cross a roundabout, period. It's impossible. How is it that a blind person can cross a roundabout if traffic does not come to a complete stop?"
Lois Thibault, coordinator of research at the U.S. Access Board Technical & Information Services Office, had similar sentiments in October 2002, when the Federal Highway Administration (FHWA) met with the Institute of Transportation Engineers for a roundabout summit in Washington.
"Although pedestrians have the right of way and drivers must yield at crossings," she told the forum, "sighted pedestrians are in fact expected to defer to vehicles and wait until they have a sufficient gap. The sound of the continuous flow of traffic in the roundabout and on the roundabout approaches masks the audible cues used in orientation and way finding so that gap identification cannot be accurate at all locations at all times."
Why sue now?
The suit was filed just prior to the Maple-Drake roundabout's opening, because "[i]t's very difficult to get injunctive relief on plans," Bernstein said.
West Bloomfield Supervisor David Flaisher, however, wonders why Bernstein couldn't have raised concerns sooner by targeting other roundabouts in the area.
"Two have been in Rochester for five years, one's been in Orion Township for a couple of years, there are several in the Lansing area and Okemos," Flaisher said. "So they've been there, and he's known about it, so I don't know why he's doing it at this time."
RCOC spokesman Craig Bryson said the road commission was never contacted by Bernstein about the roundabouts prior to announcement of construction and during the construction process.
In the next year, two more roundabouts are going to be built in the vicinity as part of the Northwestern Connector — Maple and Farmington roads (work has begun, with an estimated opening in November), and 14 Mile and Farmington roads (work to start in summer 2008 and finish that fall) — followed by five other roundabouts and some roads being widened into boulevards.
It will be up to the road commission to determine a remedy if a judge rules roundabouts discriminate against disabled people.
Focused on safety
Bernstein, who teaches social justice at Michigan State University, said a connecting tunnel or bridge would be viable solutions, but he also believes a pedestrian-activated signal would work best.
Currently in use in roundabouts in Washington, D.C., are pushbutton crosswalk activators that continually beep to alert the pedestrian to where it is. A repeating voice alert would then indicate when it's OK to proceed ("Maple Road, safe to cross").
"All we want to do is simply make it safe for disabled people," Bernstein said. "And what's good for the disabled is good for everybody. But what is dangerous for the disabled is also dangerous for everybody — it's dangerous for the blind and wheelchair users, but also dangerous for children, for kids on bikes, for mothers with strollers."
The Maple-Drake intersection has two Jewish temples, the Jewish Community Center complex, the Henry Ford Hospital West Bloomfield campus and Drake Sports Park in its proximity.
"The fact that we're in federal court over giving people the right to cross the street, as far as I'm concerned, is ludicrous," Bernstein added. "I just can't believe that they can't simply put in a traffic signal to make it safe for people. Like that's a big deal."
Flaisher said his hands are tied on the matter.
"Townships don't have their own roads; our roads are county roads, so we're dependent on the road commission," Flaisher said. "And if they say that the roundabout complies with the ADA, we just have to trust them. If it doesn't, then they'll have to fix it."
'Civil rights issue'
Bryson said that all planning efforts and designs were in compliance with the ADA, but Turkish dismisses it.
"The notion that the [RCOC] can argue that a continuous flow of traffic that never stops, 24 hours a day, seven days a week, is safer for a pedestrian to cross the street defies conventional logic," Turkish said.
According to the Insurance Institute for Highway Safety, installing a roundabout typically results in a 76 percent reduction in injury accidents; 90 percent reduction in fatalities; and 40 percent reduction in pedestrian injuries.
Bernstein said those numbers are impressive, but they're not enough.
"The people at the [RCOC] are good people ... [but] their focus is exclusively on moving traffic as quickly and efficiently as possible," he said. "And that's fine; I don't fault them for that. The issue here is, they're doing it at great risk and injury to pedestrians. There's no question that somebody's going to get hurt or killed. And that's when we have to step in and do something about it.
"This is a civil rights issue, and an interstate commerce issue," he added. "What is ultimately happening is that Oakland County is preventing disabled people from doing commerce in the county.
"I just can't imagine a federal judge is going to say that a disabled person doesn't have the right to cross the street."
In July 2002, representatives from the U.S. Department of Transportation Federal Highway Administration (FHWA) and the U.S. Access Board, a government entity commissioned to develop national design standards for complying with the Americans with Disabilities Act (ADA), met to examine options that improve roundabout accessibility — particularly for pedestrians with disabilities.
"The challenge for design engineers and planners is to find ways to build in pedestrian accessibility where appropriate," said Ed Morris, FHWA's director of civil rights.
Outside of standard pedestrian yield signs for motorists in both directions of a crossing, other design treatments were presented:
Source: The U.S. Department of Transportation Federal Highway Administration and the U.S. Access Board
Other roundabouts in Michigan
The first multi-lane roundabout in Oakland County was opened in 2003 at the intersection of Baldwin, Indianwood and Coats roads in Orion Township. It previously was an historically unsafe Y-shaped intersection.
Two other Oakland County roundabouts are expected to open this fall in Commerce Township, at Cooley Lake and Oxbow Lake roads and at Cooley Lake and Bogie Lake roads.
Recently constructed roundabouts in the metro Detroit area include the 18 Mile Road-Van Dyke Avenue-M-53 intersection in Sterling Heights, and the Campus Martius park on Woodward Avenue in downtown Detroit.
Roundabouts at schools are popular in that they serve higher levels of traffic dropping off and picking up students. Tienken and Sheldon roads between Stoney Creek High School and Hart Middle School in Rochester Hills has a roundabout, as do high schools in Saline and Gaylord and elementary schools in Okemos, Pittsfield Township and Utica.
A dual roundabout west of U.S. 23 on Lee Road in Green Oak Township, near Brighton, is considered the first of its kind in North America. The traffic circles are about 75 feet apart with one pushing traffic east and west along Lee and the entrance/exit ramps to U.S. 23 and the other moving the east-west Lee Road traffic with north-south Whitmore Lake Road vehicles exiting and entering.
Both the north and southbound interchanges at Interstate 75 and M-81 in Saginaw County's Buena Township have roundabouts.
Downtown Marshall's roundabout island, on Michigan Avenue and M-227 (Old U.S. 27), is home to the Brooks Memorial Fountain, and has been known for hosting weddings in the spring and summer.
Elsewhere in the state, Okemos, Ann Arbor, Jackson and Muskegon have newer roundabouts.
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