Dot bicyclist to join Mass. Ave. reconstruction lawsuit; case may set precedent for bicyclists' rights in the state

At least one member of DotBike has stood up to be counted among the plaintiffs suing the City of Boston and the state for allegedly not doing everything possible to accommodate pedestrians and cyclists in a reconstruction of a stretch of Massachusetts Avenue from Albany Street to Westland Avenue, and more DotBikers may follow.

"On average I probably ride Mass Ave. twice a week," said Vivian Girard of Fields Corner, who is on a short list of those who will join the lawsuit at the next opportunity. "It's really one of the major links between Dorchester and the rest of Boston, also Cambridge, Fenway, many places. Mass Ave. is going to be reconstructed only once in our lifetime. It means that without making Mass Ave. bike friendly, the city will never be bike-friendly in my lifetime. It will be a major loss."

The lawsuit was started by three people in the South End who disagree with the plan as it stands, including transportation advocate Ken Kruckemeyer, and periplegic Dennis Heaphy, who objects to the narrowed sidewalks in the plan. So far Girard and one couple from the South End are planning to join on, and Girard said he would also introduce the idea to Dorchester's fledgling bicycle advocacy group DotBike.

"We've had people coming out of the woodwork who didn't know this was going on saying we want in," said attorney for the plaintiffs Andrew Fischer.

Meanwhile, in Suffolk Superior Court last Friday, the state and city's attorneys argued that neither cyclists nor pedestrians have a legal right to any particular accommodation, other than what the state and city chooses to build. As a consequence, said Assistant Attorney General Nicholas A. Ogden, they don't have a right to sue or standing in the case.

"In reality it's not saying there is a clear duty to put bike paths on - in this case Mass Ave. It is saying [the commissioner] has to examine the issue and use his discretion," said Ogden.

Fischer argued that the law wouldn't have been created unless it was meant to be followed, even submitting an affidavit from former state Rep. Ann Paulsen, who sponsored the original bill - an exhibit that might not be considered by the court as it would not reflect the intention of the entire legislature.

"The law says, 'The commissioner shall make all reasonable provisions for the accommodation of bicycle and pedestrian traffic,'" said Fischer. "'All' is the operative word. 'Shall' means he's obliged to, not 'shall' is an exercise of discretion.

"The city prepared a plan that makes all the reasonable accommodation - eight feet of sidewalk, five feet of bicycle lane. Without explanation or justification, they rejected it. That's just saying 'We just chose not to obey the law.' I would agree that there's not a right to a bike lane on every road, but they should have 'all reasonable accommodation.'"

Judge Geraldine Hines said that while she was sympathetic to the cyclists' concerns, she had "real hard time" seeing the statute granting rights.

"The statute seems to be describing a process, a process doesn't really create a right," said Hines. "I'm having a hard time understanding what the right is that a bicyclist would have."

"If an aggrieved bicyclist can't come before this court… If there's no relief in this statute… where is the relief?" responded Fischer, just before Hines said she would consider the arguments and notify the parties of her decision.

The next hearing in the case has yet to be scheduled.