filed December 8 2000

IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS

Cause No. 2 0 0 0 6 2 5 8 2

BRIAN D. REESE VS. CITY OF HUNTER'S CREEK VILLAGE JUDICIAL DISTRICT

1. Discovery is intended to be conducted in this cause under Level 1 Rule of
   Civil Procedure 190.
   
2. Plaintiff is an individual residing in Harris County, Texas, and defendant
   is a Texas municipality located wholly within Harris County that can be
   served with process by serving its secretary at its City offices located at
   1 Hunter's Creek Place, Houston, Texas 77024.
   
3. Jurisdiction and venue are proper in this court and in this county.
   
4. This is a suit for declaratory judgment involving the interpretation,
   validity and constitutionality of a municipal ordinance of defendant under
   the Uniform Declaratory Judgments Act, Texas Civil Practices and Remedies
   Code §37-001 et seq. 4. Section 1, of Ordinance No. 422, ordained on July
   3, 1987 by the City Council of defendant ("the Ordinance"),
   purports to prohibit bicyclists from using certain public roadways:
   "Wherever a usable path for bicycles has been provided adjacent to a
   public street, bicycle riders shall use such path and shall not use the
   public street."


5. Section 2 of the Ordinance purports to direct the city engineer to post
   signs regarding the Ordinance: "The city engineer is directed to post
   signs giving notice of the requirements hereof.'


6. Purportedly pursuant to the Ordinance, the city engineer has posted signs
   bearing the caption "BICYCLES ON ROADWAY PROHIBITED" along certain
   streets in defendant's city, including Memorial Drive and Beinhorn.


7. Plaintiff lives nearby Hunter's Creek Village and regularly rides his
   bicycle from his home through the City of Hunter's Creek Village to his
   place of employment. Because the Ordinance and the signs do not make sense,
   conflict with state law, and would require plaintiff to take actions
   exposing plaintiff and others to an unreasonable risk of harm, including
   serious bodily injury and death, plaintiff is unsure of which streets, if
   any, on which he can safely and legally operate a vehicle comprising a
   bicycle in Hunter's Creek Village, and seeks the Court's determination
   thereof.


8. Plaintiff avers that the public streets on which the signs have been
   posted have not been provided adjacent thereto with a path that is
   practicable or convenient for use by vehicles comprising bicycles. The paths
   in the defendant city adjacent to public streets on which such signs have
   been posted are unreasonably hazardous for riding a vehicle comprising a
   bicycle thereon, and operating a vehicle comprising a bicycle thereon would
   and does pose an unreasonable risk of bodily harm and death to the vehicle
   operator himself, as well as other path users, including, by way of example
   and not limitation, pedestrians, baby carriages, skaters, and other vehicle
   operators comprising bicyclists for whose deaths and injuries plaintiff
   might be held legally liable. The paths are poorly maintained, are not
   smooth or level, are too narrow, are too close to adjacent impact hazards,
   are used by non-vehicular path users including pedestrians and baby
   carriages, are provided only on one side of the roadway and thus promote
   wrong-direction bicycling, have poor and/or inadequate sight distances, and
   are crossed frequently by motorized traffic at driveways, streets and other
   crossings at which the motor vehicle operator is likely to fail to see the
   non-motorized vehicle operator and/or the approach thereof.


9. Because the paths purportedly provided for vehicles comprising bicycles
   are not practicable for use by bicyclists, the signs purporting to prohibit
   operation on the roadway by operators of vehicles comprising bicycles are
   not in conformance with the Ordinance, and are illegally posted.
   Furthermore, the signs do not adequately give notice of the requirements of
   the Ordinance, and are thus not in conformance thereof and are illegally
   posted. For example, if a condition of the path or the bicycle makes the
   path unusable by the operator of a vehicle comprising a bicycle, then the
   operator of the vehicle comprising a bicycle would not be prohibited from
   using the roadway, and the ,signs fail to provide notice that the operators
   of vehicles comprising bicycles may, under the wording of the Ordinance,
   operate their vehicles comprising bicycles on the roadway under these
   circumstances.


10. Alternatively, and without waiver of the foregoing, plaintiff avers that
    the Ordinance is unconstitutionally vague and ambiguous as to key terms
    thereof, such as, for example, ("usable", "path", "usable path", "bicycles", "provided for
    bicycles," "adjacent to," "public street," "bicycle riders", "use such path" and the like, such
    that the Ordinance cannot be reasonably understood as to what is required
    and/or proscribed thereby.


11. Alternatively, and without waiver of the foregoing, plaintiff avers that
    the Ordinance is illegal and void as prohibited and/or not authorized under
    Article 6701 d, V.T.C.S., recodified in the Texas Transportation Code, Title
    7, Vehicles and Traffic, Subtitle C, Rules of the Road. Specifically,
    "A person operating a bicycle has the rights and duties applicable to a
    driver operating a vehicle under the [Subtitle C: Rules of the Road], unless
    (1) a provision of [Chapter 551 , Operation of Bicycles, Mopeds and Play
    Vehicles] alters a right or duty; or (2) a right or duty applicable to a
    driver operating a vehicle cannot by its nature apply to a person operating
    a bicycle." Tex. Tran. Code §551.103(a).


12. For further cause that the Ordinance is void, plaintiff would show (1)
    that he has a right pursuant to Tex. Tran. Code, §551.103(a), as a vehicle
    operator, to use the public roadways of defendant's city, which are not
    restricted in the same manner for use by other vehicle operators; (2) that
    he can neither be selectively and unfairly prohibited by defendant city from
    use thereof as an operator of a vehicle comprising a bicycle, nor
    selectively and unfairly required to use a path not constituting a part of
    the roadway to which other vehicle operators are restricted; and (3) in
    particular where, as here in defendant's city, such path is unreasonably
    dangerous for vehicular travel thereon, especially when that vehicle is a
    bicycle, in conflict with Tex. Tran. Code, §551.103(a). Regulation of
    traffic in a manner conflicting with §551.103(a) is prohibited pursuant to
    Tex. Tran. Code §542.201.


13. For further cause that the Ordinance is void, plaintiff would show that
    the Ordinance is arbitrary, capricious, an unreasonable exercise of police
    power, and contrary to Tex. Tran. Code §542.202 in that the Ordinance is
    not the only efficacious way to protect the public from harm. Op. Atty. Gen.
    1989, No. JM-1 109. Specifically, the purported paths are unreasonably
    hazardous for operation by vehicles comprising bicycles thereon, exposing
    the bicycle operator, other vehicle operators and other path users thereon,
    to an unreasonable risk of serious bodily injury and death; and the roadways
    adjacent to which the paths for bicycles are purportedly provided are
    reasonably safe for operation of vehicles comprising bicycles thereon.
    Furthermore, the paths that are purportedly provided by defendant for
    vehicles comprising bicycles are unsafe and do not comply with the design
    criteria for bicycle facilities established by the Texas Department of
    Transportation, 43 T.A.C. §25.54 and the American Association of State
    Highway Transportation Officials.

1. a declaration by the Court that the paths purportedly provided by the City
   of Hunter's Creek Village for bicycles are not useable for operation of
   vehicles thereon;


2. a declaration by the Court that the signs purporting to ban vehicle
   operators comprising bicyclists from using non-limited-access and
   non-controlled-access roadways in the City of Hunter's Creek Village do not
   comply with the provisions of Ordinance No. 422 of the City of Hunter's
   Creek Village, Texas-,


3. a declaration by the Court that Sections 1 and 2 of Ordinance No. 422 of
   the City of Hunter's Creek Village, Texas, are unconstitutional as vague,
   ambiguous and unintelligible;


4. a declaration by the Court that Section 1 of Ordinance No. 422 of the City
   of Hunter's Creek Village, Texas, is void under the Texas Transportation
   Code and contrary to sections 551.1 01 (a), 542.201, 542.202 and 545.065
   thereof;


5. an order by the Court directing the City of Hunter's Creek Village to
   remove the "BICYCLES ON ROADWAY PROHIBITED" signage, or allowing
   Plaintiff to remove the signage;


6. an order by the Court prohibiting the City of Hunter's Creek Village from
   erecting "BICYCLES ON ROADWAY PROHIBITED" signage;


7. the costs of suit and reasonable and necessary attorney's fees as are
   equitable and just;
8. all other relief to which plaintiff may show himself entitled.

Respectfully submitted,

Lundeen & Arismendi, L.L.P.
1916 Baldwin
Houston, Texas
77002
(713) 652-2555, telephone
(713) 652-255
Daniel N. Lundeen, SBOT# 12695250
David B. Dickinson, SBOT# 05833800
Attorneys in Charge for Plaintiff