RUMFORD v. Anne and John Sparks et al., Intervenors, Respondents and Appellants. (1980)

This is an appeal from grant of a writ of mandate requiring the City of Berkeley to remove traffic diverters and forbidding it to place any such devices in the city streets. The action was filed by several individuals and one private association; other individuals and Berkeleyans For Fair Traffic Management, an unincorporated association, obtained an order granting leave to intervene. Both the City of Berkeley and intervenors appeal the grant of the writ of mandate, and plaintiffs appeal as to part of the judgment, including the failure to award attorney fees.

Traffic diverters were first placed on the streets of Berkeley in 1964. Between that time and 1975, 21 were installed. In 1972 the Berkeley City Council adopted a resolution authorizing formulation of an overall plan for the reduction of neighborhood traffic, which resulted in the Neighborhood Traffic Study (Study). It contained a discussion of the use of traffic diverters and traffic circles as a means of controlling neighborhood traffic. In July of 1975, the city counsel adopted the traffic management plan (TMP) authorizing the use of traffic diverters on an experimental basis for the purpose of shifting traffic from “local” streets to those designated as “arterial.” Within six months of this action the city had installed 41 diverters. In 1976 the TMP was adopted on a permanent basis.

The diverters, which consist of various combinations of concrete bollards and redwood boards, are of three types. (1) A full diverter extends across the width of an entire street, preventing passage of vehicular traffic in both directions. (2) A diagonal diverter extends diagonally across an intersection, preventing passage of vehicular traffic in one direction and forcing a turn. (3) A semi-diverter extends across half the width of a street, preventing passage of vehicular traffic in one direction. Streets with both full diverters and diagonal diverters are closed to through traffic in both directions, while streets with semi-diverters are closed to through traffic in one direction. (See Appendix.) All streets with diverters, though closed to through traffic, are accessible to and used by vehicular traffic. In addition to the diverters, traffic circles have been installed in various locations.

The TMP, and the system of diverters installed in accordance with it, have been the subject of considerable controversy within the City of Berkeley. Opponents caused an initiative measure to be placed on the June 1976 ballot which, if enacted, would have required the removal of most diverters and traffic circles. This proposal was defeated, as was a second initiative in April 1977.

The diverters as “traffic control devices.”

The trial court ordered removal of the Berkeley barricades on its finding that they constitute “traffic control devices” under Vehicle Code section 440,¹ which do not conform to Department of Transportation (DOT) uniformity standards and specifications required by section 21401. Intervenors maintain that the barricades do not qualify as traffic control devices under that section.

Section 440 defines “official traffic control device” as “any sign, signal, marking, or device not inconsistent with this code, placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic.” A diverter appears to fall within the definition. Intervenors contend that the statutory definition of “official traffic control device” applies only to devices which communicate warnings or other information to motorists (e. g., traffic signals and warning lights), their premise being that the diverters do not “communicate information” to drivers.

Intervenors, first noting that in section 400 the word “device” is preceded by the words: “sign, signal, marking,” refer us to the doctrine of ejusdem generis, i. e., “where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.” (Scally v. Pacific Gas and Electric Co. (1972) 23 Cal.App.3d 806, 819, 100 Cal.Rptr. 501, 509.) There is nothing, however, to indicate that “devices” are in a class more general than the preceding trilogy. Although the argument is framed as a request to interpret “devices” as connoting the sign-signal-marking class, in effect intervenors are asking us to ignore the separate “device” category.

The next contention rests on an interpretation of statutory history. Section 21400 presently provides that its uniformity provisions apply to “all official traffic control devices . . . including, but not limited to ” specified signs and markings. (Emphasis added.) Until 1969, sections 21400-21406 contained explicit specifications, binding on local communities, with respect to stop signs, yield signs, speed signs and warning approach signs. Intervenors suggest that subsequent revisions to the Vehicle Code repealing sections 21403-21406 should not be interpreted as broadening the scope of devices subject to uniformity requirements. This argument lacks merit. The fact that prior uniformity provisions of the Vehicle Code dealt specifically with “verbal” signs should not be read to narrow the ambit of the present statutory language.

Thirdly, intervenors rely on the placement of the uniformity sections 21400 and 21401, in the Vehicle Code to substantiate their theory that the term “official traffic control device” should be narrowly interpreted. They note that these sections fall within chapter 2 of division 11, which is captioned “TRAFFIC SIGNS SIGNALS MARKINGS.” However, they overlook section 7, “Division, chapter, and article headings do not in any manner affect the scope, meaning, or intent of the provisions of this code.”

Finally, intervenors contend that limiting the meaning of official traffic control devices is consistent with actions of the DOT, the administrative agency responsible for implementing the code. They stress that DOT has limited to signs and warning lights the standards promulgated pursuant to section 21400. (See 21 Cal.Admin.Code, ss 1409.2 (stop signs), 1409.3 (yield signs), 1409.4 (speed restriction signs), 1409.5 (warning approach signs), 1409.6 (street and highway signs), and 1409.7 (warning lights and signs for work interfering with traffic).)

Although the contemporaneous administrative construction of a statute by an agency charged with its enforcement and interpretation is entitled to great weight (Rivera v. City of Fresno (1971) 6 Cal.3d 132, 140, 98 Cal.Rptr. 281, 490 P.2d 793), the argument is unpersuasive here. Failure of DOT to enact a specific regulation covering traffic diverters is not a “construction” of the pertinent Vehicle Code sections.

In view of the foregoing, there is no reason to disregard the plain language of section 440, which sets forth the statutory definition of “official traffic control device.” Accordingly, the trial court properly found that the Berkeley diverters are “official traffic control devices.”

Uniformity requirements for traffic control devices.

Unlike intervenors, the city suggests that the diverters are official traffic control devices within the meaning of section 440, but are not “traffic control devices” within the meaning of the uniformity sections (ss 21400 and 21401). In essence, the contention is that there are two classes of traffic control devices, those which are subject to uniformity requirements and those which are not.

Finding legislative intent in sections 21400 and 21401 to regulate only a limited category of traffic control devices, the city places emphasis on the language of section 21400 mandating uniformity standards and specifications “for all official traffic control devices placed pursuant to the provisions of this code.” (Emphasis added.) Thus, the city urges that section 21400 does not authorize DOT to publish uniformity standards for all official traffic control devices.

The city then reads section 21351 as broader in scope than section 21400 because section 21351 authorizes placement of local traffic control devices necessary “to carry out provisions of this code or local traffic ordinances or to warn or guide traffic.” Thus, the city postulates that local authorities are given power to install traffic control devices other than those regulated by section 21400. The argument like some of the devices is circular. What is clear is that section 21351 grants the local authorities the power to install traffic control devices. Those devices employed by a local authority pursuant to this power are “placed pursuant to the provisions of this code” within the language of section 21400 and are, therefore, subject to the grasp of section 21400's uniformity requirements.

Furthermore, the city's argument overlooks the explicit intent of the Legislature to preempt the field of traffic control devices. Section 21 states, “Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.” Traffic control devices are covered by the code and have been held to be a subject of state preemption. (City of Lafayette v. County of Contra Costa (1979) 91 Cal.App.3d 749, 754-756, 154 Cal.Rptr. 374.) While it has been recognized that the opening, laying out and improvement of streets is a municipal affair (see e. g., City of Walnut Creek v. Silveira (1957) 47 Cal.2d 804, 306 P.2d 453; Raisch v. Myers (1946) 27 Cal.2d 773, 167 P.2d 198), the regulation of traffic on city streets is a matter of state concern. (See e. g., Atlas Mixed Mortar Co. v. City of Burbank (1927) 202 Cal. 660, 262 P. 334; Pipoly v. Benson (1942) 20 Cal.2d 366, 125 P.2d 482.) This court cannot ignore the expressed intent of the Legislature; local authorities do not have discretion to design and place traffic control devices free from state restraints.

Compliance of the diverters with DOT regulations.

The trial court found that the Berkeley barricades failed to conform to the DOT regulations, but it did not explain the nature of the noncompliance. Both the city and intervenors contend that the barricades conform to the “uniform standards and specifications” established in title 21, California Administrative Code section 1409.9: “All official traffic control devices placed or erected after November 10, 1969, which are not specifically covered by these regulations, and all official traffic control devices placed or erected prior to November 10, 1969, shall conform to the statutory requirements, if any, in effect at the time of their installation.” It is undisputed that the diverters are not “specifically covered” by regulations 1409.1 through 1409.8 and that they do not violate any statutory standard existing “at the time of their installation.” As the provisions of 1409.9 have not been violated, this court must assume that the court below impliedly determined that regulation 1409.9 is invalid.

An administrative regulation is presumed to be valid and a party challenging it has the burden of proving its unreasonableness. (Freeman v. Contra Costa County Water Dist. (1971) 18 Cal.App.3d 404, 408, 95 Cal.Rptr. 852.) In an effort to meet that burden, plaintiffs argue that by enacting section 1409.9, DOT exceeded the authority granted by the Legislature. They point to the provisions of two Vehicle Code sections:

Section 21400,

“The Department of Transportation shall, after consultation with local agencies, adopt rules and regulations prescribing uniform standards and specifications for all official traffic control devices placed pursuant to this code,” (emphasis added)

and to section 21401, which permits placement of

“only those official traffic control devices that conform to the uniform standards and specifications promulgated by the (DOT) . . . .” (Emphasis added.)

Plaintiffs' theory is that issuance of a “stop gap” provision such as 1409.9 provides a blanket sanction for any local device not otherwise covered by the code or regulation. As such, they assert that DOT circumvents statewide preemption of the field by failing to carry out its statutory obligation to issue regulations covering the barricades.

Plaintiffs concede that the effect of a finding that regulation 1409.9 is invalid would be to “invalidate all devices and signs not included within sections 1409.1 through 1409.8 of title 21, California Administrative Code (and thus) cause potentially serious problems.” The only devices specifically covered by the regulations are stop signs, yield-right-of-way signs, speed signs, warning approach signs for railroad crossings, street and highway name signs, warning devices for work interfering with traffic, and two-way left-turn lanes. If regulation 1409.9 is invalid, only these traffic control devices are legal and many familiar devices, such as traffic lights and one-way signs, would be illegal.² If this court were to accept plaintiffs' reading of sections 21400 and 21401, the conclusion is inescapable that DOT violated its statutory duty by failing to issue simultaneously effective regulations covering every official traffic control device in existence. Such an interpretation is contrary to the settled rule of statutory construction that statutes are to be given a reasonable and common sense construction (Fireman's Fund Ins. Co. v. Security Pacific Nat. Bank (1978) 85 Cal.App.3d 797, 149 Cal.Rptr. 883), and we decline to adopt it.

Compliance with Vehicle Code section 21101.

Plaintiffs contend that the traffic diverters constitute an illegal closure of the street, asserting that the City of Berkeley failed to comply with Vehicle Code section 21101, subdivision (a) in effecting the closure.

That section allows local authorities to close “any highway to vehicular traffic when in the opinion of the legislative body having jurisdiction the highway is no longer needed for vehicular traffic.” (Emphasis added.) Plaintiffs challenge the trial court's finding that the city did not violate section 21101 in placing the diverters. They assert that the city made no determination that the roads were no longer needed for vehicular traffic, but determined only that they were not needed for some vehicular traffic, i. e., through traffic.

A similar challenge was made to a street closure in the case of Snyder v. City of South Pasadena (1975) 53 Cal.App.3d 1051, 126 Cal.Rptr. 320. The barricade in Snyder blocked through traffic onto a street at an intersection, but allowed vehicular traffic to enter the street from the opposite direction. The city council had determined, as in the instant case, that the street in question was no longer needed for through traffic.

Appellants in Snyder maintained that insofar as the very reason for closure of the residential street was the substantial increase in vehicular traffic, it could not have been determined that the street was “no longer needed.” (Snyder, supra, at p. 1058.) Snyder rejected appellants' “strained and narrow” interpretation of the word “needed,” adopting rather a liberal interpretation of section 21101, subdivision (a) as suggested by Simpson v. City of Los Angeles (1935) 4 Cal.2d 60, 47 P.2d 474, a case upholding total closure of a street converted into a “Mexican Village” mall.

We likewise reject plaintiffs' attempt to interpret “no longer needed for vehicular traffic” to mean exclusion of all vehicular traffic between two points, as in the case of the “Mexican Village” mall. They contend that the City of Berkeley's determination that the streets were no longer needed for through traffic constituted a “partial closure” prohibited by City of Lafayette v. County of Contra Costa, supra, 91 Cal.App.3d 749, 154 Cal.Rptr. 374. Unable to distinguish Snyder from City of Lafayette, plaintiffs suggest that the two are inconsistent and that Snyder should be disregarded.

We find no inconsistency in the two cases and find Snyder to be controlling. “Partial closure,” as used by the court in City of Lafayette, does not refer to a partial physical closure in the sense that the Berkeley/Snyder full diverter closes the street to through traffic from one direction but not to traffic entering from the opposite direction. Rather, “partial closure” in Lafayette denotes closure to some persons, but not to others.

In City of Lafayette, it was resolved to install an automatic gate across Happy Valley Road, and to furnish certain “exempted drivers” with devices to open the gate. It was determined in that case that the legislative authority of section 21101, subdivision (a) did not extend to an ordinance which would “confine the right to use Happy Valley Road for purposes of travel to the City's residents, and deny that right to others of the traveling public . . . .” Such an ordinance was unauthorized by any police power, and was in derogation of the public policy that all persons have an equal right to use the streets. (City of Lafayette, supra, at p. 757, 154 Cal.Rptr. at p. 379.)

City of Lafayette distinguished Snyder and Simpson on the basis of their closure to all traffic, stating that, “Neither purports to allow a city to close a street, or part of it, to the state's citizens generally but not, as in the case at bench, to its own residents or other ‘exempted drivers.’ ” (Id.) The distinction between total and partial closure is drawn not on the basis of whether the street is rendered devoid of traffic, but on the basis of whether the closure is discriminatory. In Snyder, the barrier effected a closure to all traffic according to City of Lafayette, because it was closed to all through traffic.

We thus find no fault with the trial court's finding that the city was in compliance with section 21101 when it determined that the highways affected by the diverters were not needed for through traffic.

The diverters in this case are traffic control devices which conform to applicable uniformity requirements. In view of this determination, it is unnecessary to consider plaintiffs' contentions with regard to the award of attorney fees.

The judgment ordering removal of the diverters and prohibiting further installation is reversed. The City of Berkeley and intervenors are to recover their costs on appeal from plaintiffs.

APPENDIX

FOOTNOTES

1.  All references hereafter are to the Vehicle Code.

2.  Plaintiffs suggest as a solution that the DOT Traffic Manual be used as an alternative to DOT's regulations. However, as they candidly admit, the Manual is “neither designed as, nor does it establish, a legal standard for these (traffic) functions.”

POCHeE, Associate Justice.

CALDECOTT, P. J., and CHRISTIAN, J., concur.