International Municipal Lawyers Association 2008 Annual Conference Las Vegas, Nevada. Work Session: ADA

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1 International Municipal Lawyers Association 2008 Annual Conference Las Vegas, Nevada Work Session: ADA Abigail Elias Chief Assistant City Attorney City of Ann Arbor, Michigan 1

2 Title II of the ADA: Constructing Accessible Public Rights-of of- Way and Reducing Exposure for Plaintiffs Attorney Fees in the Process 2008 International Municipal Lawyers Association. This is an informational i and educational report distributed by the International Municipal Lawyers Association during its 2008 Annual Conference, held September 14-17, 17, 2008, in Las Vegas, Nevada. IMLA assumes no responsibility for the policies or positions presented in the report or for the presentation of its content. 2

3 The accessibility of public rights-of of- way tends to focus on curb ramps (details from Michigan Dep t t of Transportation Standards dated ) 08) 3

4 Newly constructed facilities (28 CFR (a)) 28 CFR (a) - each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26,

5 Altered facilities (28 CFR (b)) 28 CFR (b) Each facility or part of a facility altered... in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such a manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26,

6 Requirements for sidewalks and curb ramps (28 CFR (e)) 28 CFR (e) specifically addresses the requirements for curb ramps: (1) Newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway. (2) Newly constructed or altered street level pedestrian walkways must contain curb ramps or other sloped areas at intersections to streets, roads, or highways. 6

7 Facilities already existing on January 26, 1992 (28 CFR ) 28 CFR (a)(1) - a public entity is not necessarily required to make each of its existing facilities accessible to and usable by individuals with disabilities. 28 CFR (b)(1) a public entity may choose redesign of equipment, reassignment of services to accessible buildings,... delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities,... or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. 7

8 Facilities already existing on January 26, 1992 (28 CFR ) (cont'd) 28 CFR (b)(1) - [a] public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. 28 CFR (b)(2) a public entity is not required to take any action that would threaten or destroy the historic significance of an historic property. 8

9 Facilities already existing on January 26, 1992 (28 CFR ) (cont'd) 28 CFR (a)(3) - a public entity is excused from undertaking any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. The decision must be made by the head of a public entity or designee after considering all resources available, and must be accompanied by a written statement of the reasons for reaching that conclusion. The public entity shall take other action that would ensure that individuals with disabilities receive the benefits or services provided by the public entity. 9

10 What standards apply in the public right-of of-way? ADA Standards for Accessible Design Appendix A to 28 CFR Part 36 (also referred to as ADA Accessibility Guidelines or ADAAG). Commonly assumed to apply, but technically do not apply to public rights-of of-way. Are good safe harbor standards to follow. Accessible routes are those within buildings or facilities within a site. Facility is defined as buildings, improvements, passageways, etc., located on a site. Site is defined as [a] parcel of land bounded by a property line or a designated portion of a public right- of-way. way. 10

11 What standards apply in the public right-of of-way? (cont d) Alford v. City of Cannon Beach,, 2000 U.S. Dist. LEXIS at 71 (D. Or. January 17, 2000), the court held that [s]ite [s]ite does not include city streets. The court assumed without deciding that the 4.3 Accessible Route standards of ADAAG applied to curb ramps in the city s s public right-of of-way U.S. Dist. LEXIS at 72, fn. 14. In its brief dated April 6, 2001, for the United States as amicus curiae to the Court of Appeals for the Ninth Circuit in Barden v. City of Sacramento, No , 15744, the U. S. Justice Department stated explicitly that the standards in ADAAG were drafted to apply to Title III facilities and not to public rights-of of-way. (Brief at pp ) 11

12 What standards apply in the public right-of of-way? (cont d) Section 14, to govern public rights-of of-way, was drafted by the U.S. Access Board to be added to ADAAG, then removed from consideration and reserved on January 13, Chapter 6 of the U. S. Justice Department s ADA Tool Kit for State and Local Governments, available at: recognizes that standards need to be developed for sidewalks and curb ramps in the public right-of of-way (pp. 2-3). 2 12

13 What standards apply in the public right-of of-way? (cont d) The U.S. Access Board s s November 23, 2005, draft accessibility guidelines for public rights-of of- way ( PROWAC( PROWAC ) ) are available at: The Federal Highway Administration has adopted PROWAC as currently recommended best practices. htm 13

14 What standards apply in the public right-of of-way? (cont d) ADAAG (28 C.F.R. Part 36, Appendix A) and UFAS (41 C.F.R. Part , Appendix A) are safe harbor standards; good standards to follow if they work. Some UFAS provisions differ from ADAAG, but they are generally the same for the purposes of public sidewalks and curb ramps. UFAS also can be found at: board.gov/ufas/ufas-html/ufas.htm. PROWAC has not (yet) been adopted and is not enforceable, but its standards can be used when ADAAG or UFAS standards don t t fit. 14

15 What do you do if (or before) private plaintiffs and their attorneys show up? Note electronic level being used; more accurate than bubble levels; pros and cons of 2 2 length vs. 4 4 length. 15

16 Helpful mantra: Do not decide what cannot be done until everything that can be done has been considered. 16

17 Examples of curb ramps - difficult intersection Before and after 17

18 Examples of curb ramps thinking outside the box Original re-design had non-compliant ramp 18

19 Examples of curb ramps thinking outside the box (cont'd) By extending the sidewalk further next to the wall, a level landing and fully compliant curb ramp could be installed 19

20 Examples of curb ramps - difficult intersection (pillar, storm grate, steep grade) Sidewalk approach was re-graded to create level landing and to reduce running slope of curb ramp; table topping of intersection pavement (incomplete in photos). 20

21 Examples of curb ramps - difficult intersection (pillar, storm grate, steep grade) Opposite side of the street Sidewalk re-graded level pathway to curb ramp 21

22 Examples of curb ramps planned (developer of adjacent site will construct) Note steep road grade and limited ROW 22

23 Examples of curb ramps planned (cont'd) Note steep road grade and limited ROW 23

24 Examples of curb ramps planned (cont'd) The bump outs at the intersection allow for a level landing between the sidewalk and the curb ramp and allow for extended curb ramps with reduced running slopes (from existing 24% to 16.5%) A level landing at the top of a curb ramp is required, and is particularly important if the running slope of the curb ramp has to exceed 8.3% Bump outs can be used in locations where adjacent buildings do not allow room for a level landing and compliant curb ramps 24

25 Examples of curb ramps planned (cont'd) Plans: 25

26 PROWAC Advisory R303.2 [Curb Ramp] Types It will sometimes be necessary to limit the run of a parallel or perpendicular ramp in order to avoid chasing grade indefinitely. In new construction at standard curb heights, required level landings can provide a datum for measuring most curb ramp slopes. Limiting new ramps to an 8.3% slope on steep routes will result in a slight increase in grade on the balance of the route, but will facilitate street crossing and a timely and manageable ascent to the sidewalk, particularly important when crossing in traffic. 26

27 Departures from standards due to technical infeasibility Schonfeld v. City of Carlsbad,, 978 F. Supp. 1329, 1341 (S.D. Cal. 1997), where technical infeasibility required departure from standards, linear slopes greater than 8.33% and in some cases as much as 17 18%, did not violate the applicable regulations. McConnell v. City and County of Honolulu, Civil No DAE/KSC (D. Hawaii), Paragraph 16 of Fourth Stipulation Regarding Consent Decree and Order Filed May 5, 1997 and Order - a usability assessment of curb ramps by wheel chair users concluded that [R]amps are usable with up to a 14.0% % slope. The average usable slope criterion was determined to be 13.5%. Reconstruction of previously installed ramps not required for ramps with running slopes less than 13.5%. 27

28 Sidewalks combined bicycle path and sidewalk; hand rails A bicycle path that is used by runners and other pedestrians should be treated like a sidewalk ADAAG requires hand rails and level landings every 30 feet for ramps in excess of 5% (that are within a building or site) PROWAC does not require hand rails for sidewalks hand rails also can hinder access to the sidewalk by pedestrians 28

29 Departures from standards due to technical infeasibility (cont'd) Document, document, document. Document the conditions that made full compliance at the location infeasible. Document the options considered and why other options were not feasible or caused more problems than they solved. 29

30 Departures from standards due to technical infeasibility (cont'd) memo excerpts The longitudinal roadway approach grades that lead to and from the t E St. Bridge over railroad tracks are approximately 5%. Due to the close proximity of the bridge to the S St. intersection and the fact that it is at a fixed height that is an essential part p of the structural frame of the bridge that cannot be changed, we cannot flatten the longitudinal grades of E St. to 2%, or less, prior to reaching the intersection. Thus, we are forced to follow the longitudinal grade of E St. through the S St. intersection. In doing this, the cross-slopes slopes at certain sidewalk ramps will exceed 2%. Our design is both reasonable and the best possible accommodation n of all relevant design criteria. This is due to the fact that the existing longitudinal l grade of the roadway that comprises the cross-walk (within the paved surface of the roadway) is in excess of 2%. 2 If it were possible to construct our proposed ramps with a 2% maximum cross-slope, slope, the users would still be forced to use a cross walk (across the roadway itself) self) that has a cross-slope slope greater than 2%. By forcing the grade of the curb and gutter to have a maximum longitudinal grade of 2%, to accommodate the maximum ramp cross-slope slope requirements of Section 4.8.6, we would be creating a situation that would cause a hump within the driving lane of the roadway and provide no real increase in mobility for the users of the cross-walk, as they would still be forced to use a cross-walk that has a cross-slope slope of greater than 2%. We believe that such a design would actually reduce the overall safety of the intersection, and indirectly, the safety of the persons that use it. Our current design will allow us to construct the ramps at a cross ss-slope slope of approximately 3.3% (worst case cross-slope slope (WB lanes on the east side of S St.)) and 6.19% (existing grade along the curb line on the west side of S St.) Again, with the exception ion of the 2% maximum cross- slope requirement, all other applicable requirements of the ADAAG G standards. 30

31 Departures from standards due to technical infeasibility (cont'd) memo excerpts Currently no pedestrian crossings exit within the P St. project limits. The City plans to add two marked mid- block crosswalks on P St.... the second just north of B St. The longitudinal grade in P St. at the B St. crossing is approximately 3.4%, which creates a cross slope at the location where the curb ramp meets the street in excess of the 2% currently allowed in the ADAAG. According to PROWAC, R the cross slope at midblock crossings shall be permitted to be warped to meet the street grade. The design is consistent with this provision. 31

32 Building industry tolerances are allowed UFAS and ADAAG section 3.2 provide: All dimensions are subject to conventional building industry tolerances for field conditions. Identify the building industry tolerance for the work being done and see if it helps. As it relates to concrete finish work for curb ramp and sidewalk construction the Court finds that the industry tolerance is 1%. Thus, for example, even though the UFAS design standard requires that a curb ramp running slope not exceed 8.33%, and that the City should use the least possible slope when constructing any curb ramp, the dimensional tolerance would permit the construction of a curb ramp to be as steep as 9.33% under appropriate conditions. UFAS 3.2, Lonberg v. City of Riverside,, 2007 U.S. Dist. LEXIS at 16 (C.D. Cal. May 15, 2007) (Unfortunately, the industry tolerance relied on isn t identified.) 32

33 Sidewalks combined bicycle path and sidewalk; hand rails (cont'd) Hand rails on new building adjacent to altered sidewalk 33

34 Sidewalks combined bicycle path and sidewalk; hand rails (cont'd) Views of altered bicycle path, including level landings and hand rails note that slope of path exceeds road grade 34

35 Sidewalks combined bicycle path and sidewalk; hand rails (cont'd) Views of altered bicycle path, including level landings and hand rails 35

36 Truncated domes tactile warnings Photo #1 is a picture of a curb ramp with the concrete stamped truncated domes. Photo #2 - is a picture of the cast-in in-place truncated dome tiles with the nearest edge being 6"-8" from back of curb and opposite edge slightly further. 36

37 Requirement of clear space in a crosswalk PROWAC R requires a 4.0 ft. clear space in a crosswalk beyond the curb ramp. Some state and municipal standards already require this for diagonal curb ramps so that a person entering or exiting the base of the ramp can remain within the crosswalk when choosing a crossing. Figure from Accessible Sidewalks and Street Crossings an informational guide,, published by the FHWA, authored by Leverson Boodlal _fhwa.pdf 37

38 Fee-shifting provisions mean paying prevailing plaintiffs attorney fees Best option to avoid exposure: make sure the plaintiffs are not prevailing 38

39 How Not to Pay Attorney Fees If the municipality does things right, there is no cause of action. Whatever the municipality does, it should try not to leave itself open to a material alteration of its legal relationship with private plaintiffs e.g., a settlement or court order to redo curb ramps, to change design and construction practices, to speed up corrections, etc. 39

40 How Not to Pay Attorney Fees (cont'd) Commit to the accessibility program. Have a plan to correct deficiencies in prior curb ramps. Document all design variations and the reasons. Document the measurements of all compliant installations when the are constructed. 40

41 Special request program - respond to access requests for identified locations Budget funds for special requests for curb ramps that are not part of sidewalk repairs, street resurfacing or the municipality s s transition plan Make the program known to disability rights and assistance organizations 41

42 Special request program (cont'd) Respond to schools when a mobility or vision impaired student moves to a new location and the student needs an accessible route between home and a school or school bus stop Respond to the bus company to make a bus stop accessible Respond to an individual to make a particular corner accessible 42

43 Special request program (cont'd) Bus stop across from a high school platform and ramp at stop, ramps in median and ramp to sidewalk adjacent to school installed pursuant to a special request 43

44 Special request program (cont'd) Example of a request form (from the City and County of Honolulu) 44

45 A couple of good power point presentations Both appear to apply PROWAC standards. documents/9v1ewa pdf (ASCE Dallas Branch, April 2004) 45