Americans With Disabilities Act_Information SummaryMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Americans with Disabilities Act and Sidewalks
DATE: May 12, 2010
Dubuque
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Assistant City Manager Crenna Brumwell is transmitting a summary of the statutory
requirements, case law and guidelines which address the interaction of the Americans
with Disabilities Act and City projects.
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Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Crenna Brumwell, Assistant City Attorney
Gus Psihoyos, City Engineer
Michael C. Van Milligen
Masterpiece on the Mississippi
CRENNA M. BRUMWELL, E
ASSISTANT CITY ATTORNEY
MEMORANDUM
To: Gus Psihoyos, City Engineer
DATE: April 16, 2010
RE: Americans with Disabilities Act and sidewalks
am writing to provide a summary of the statutory requirements, case law, and
guidelines which address the interaction of the Americans with Disabilities Act (ADA)
and city projects. The issue presented itself specifically with the upcoming
reconstruction of Sunset Ridge. Sunset Ridge is a city street which does not currently
have sidewalks.
Question:
Does the reconstruction of Sunset Ridge require the installation of sidewalks?
Conclusion:
The Americans with Disabilities Act (ADA) defines "public entity" to include local
governments and "facility" to include both sidewalks and roadways. Facilities which are
altered or newly constructed by, on behalf of, or for the use of a public entity, after
January 26, 1992 are required to be accessible for persons with disabilities. "New
construction is held to the highest standard of accessibility because the cost of including
accessibility is minimal compared to the overall cost of construction."
Individuals with disabilities cannot be excluded from participation in or denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity. Courts have found that "sidewalks are, in and of
themselves, programs, services, or activities for the purpose of the ADA's implementing
regulations." A sidewalk must be installed along, a minimum of, one -side of Sunset
Ridge during the construction process.
Law:
Code of Federal Regulations
Title 28— Judicial Administration
Chapter I— Department of Justice
Part 35 — Nondiscrimination on the basis of disability in state and local government
services
§ 35.101 Purpose.
The purpose of this part is to effectuate subtitle A of title II of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12131), which prohibits discrimination on the basis of
disability by public entities.
§ 35.102 Application.
(a) Except as provided in paragraph (b) of this section, this part applies to all services,
programs, and activities provided or made available by public entities.
(b) To the extent that public transportation services, programs, and activities of public
entities are covered by subtitle B of title II of the ADA (42 U.S.C. 12141), they are not
subject to the requirements of this part.
§ 35.104 Definitions.
For purposes of this part, the term --
Act means the Americans with Disabilities Act (Pub. L. 101 -336, 104 Stat. 327, 42
U.S.C. 12101 -12213 and 47 U.S.C. 225 and 611).
Disability means, with respect to an individual, a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; a record of
such an impairment; or being regarded as having such an impairment.
(1)(i) The phrase physical or mental impairment means --
(A) Any physiological disorder or condition, cosmetic disfigurement, or
anatomical Toss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory (including
speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and
lymphatic, skin, and endocrine;
(B) Any mental or psychological disorder such as mental retardation, organic
brain syndrome, emotional or mental illness, and specific learning disabilities.
(ii) The phrase physical or mental impairment includes, but is not limited to, such
contagious and noncontagious diseases and conditions as orthopedic, visual, speech
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple
sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness,
specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), 1
tuberculosis, drug addiction, and alcoholism. 1
(iii) The phrase physical or mental impairment does not include homosexuality or
bisexuality.
(2) The phrase major life activities means functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.
(3) The phrase has a record of such an impairment means has a history of, or has been
misclassified as having, a mental or physical impairment that substantially limits one or
more major life activities.
(4) The phrase is regarded as having an impairment means -
(i) Has a physical or mental impairment that does not substantially limit major life
activities but that is treated by a public entity as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life
activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this definition but is
treated by a public entity as having such an impairment.
(5) The term disability does not include --
(i) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender
identity disorders not resulting from physical impairments, or other sexual
behavior disorders;
(ii) Compulsive gambling, kleptomania, or pyromania; or
(iii) Psychoactive substance use disorders resulting from current illegal use of
drugs.
Facility means all or any portion of buildings, structures, sites, complexes, equipment,
rolling stock or other conveyances, roads, walks, passageways, parking Tots, or other
real or personal property, including the site where the building, property, structure, or
equipment is located.
Individual with a disability means a person who has a disability. The term individual with
a disability does not include an individual who is currently engaging in the illegal use of
drugs, when the public entity acts on the basis of such use.
Public entity means --
(1) Any State or local government;
(2) Any department, agency, special purpose district, or other instrumentality of a State
or States or local government; and
(3) The National Railroad Passenger Corporation, and any commuter authority (as
defined in section 103(8) of the Rail Passenger Service Act).
§35.151 New Construction and alterations.
(a) Design and construction. 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, 1992.
(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for
the use of a public entity 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 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, 1992.
(e) 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.
US Code
Title 42 —The Public Health and Welfare
Chapter 126 —Equal Opportunity for Individuals with Disabilities
Subchapter II— Public Services
Part A— Prohibition Against Discrimination and Other Generally Applicable Provisions
§ 12131. Definitions
As used in this subchapter:
(1) Public entity
The term "public entity" means —
(A) Any State or local government;
(B) Any department, agency, special purpose district, or other
instrumentality of a State or States or local government; and
(C) The National Railroad Passenger Corporation, and any commuter
authority (as defined in section 24102 (4) of title 49).
(2) Qualified individual with a disability
The term "qualified individual with a disability" means an individual with a
disability who, with or without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or transportation barriers,
or the provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or
activities provided by a public entity.
§ 12132. Discrimination
Subject to the provisions of this subchapter, no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.
United States Access Board
American with Disabilities Accessibility Guidelines (ADAAG)
4.1.2 Accessible Sites and Exterior Facilities: New Construction. An accessible site
shall meet the following minimum requirements:
(1) At least one accessible route complying with 4.3 shall be provided within the
boundary of the site from public transportation stops, accessible parking spaces,
passenger loading zones if provided, and public streets or sidewalks, to an accessible
building entrance.
(2) (a) At least one accessible route complying with 4.3 shall connect accessible
buildings, accessible facilities, accessible elements, and accessible spaces that are on
the same site.
Accessible Rights -of -Way: A Design Guideline
1.4 Rights -of -Way Guidelines
Title II requires non - discrimination in all programs, services, and activities of public
entities. The construction, alteration, or maintenance of the public rights -of -way is an
activity of a public entity and is therefore subject to the nondiscrimination requirements.
Federal Highway Administration
Designing Sidewalks and Trails for Access
Chapter 1 - Disability Rights Legislation and Accessibility Guidelines and Standards in
the United States
The Americans with Disabilities Act of 1990 (ADA) is a landmark civil rights law that
both identifies and prohibits discrimination on the basis of disability. The Act prohibits
discrimination in employment, telecommunications, transportation, access to facilities
and programs provided by State and local government entities, and access to the goods
and services provided by places of public accommodation such as lodging, health, and
recreation facilities. People who design and construct buildings and facilities are
responsible under the ADA to make them accessible to and usable by people with
disabilities.
1.2.3 ADA Regulations that Apply to Public Entities
Title II, Subpart A of the ADA prohibits State and local governments (public entities)
from discriminating against people with disabilities in all programs, services, and
activities. Title II, Subpart B prohibits discrimination against people with disabilities in
public transportation provided by public entities (private transportation is covered in Title
III).
New construction is held to the highest standard of accessibility because the cost of
including accessibility is minimal compared to the overall cost of construction. The
current implementing regulations for Title II allow public entities the flexibility to use
either UFAS or the ADA Standards for Accessible Design for new construction and
alterations. Once a standard has been chosen, it must be followed completely for a
given facility or project in both new construction and subsequent alterations (US DOJ,
1993b).
New construction or alteration work commenced after January 26, 1992, must meet the
requirements outlined in the ADA Standards for Accessible Design or UFAS.
Questions and Answers About ADA/Section 504
Public Agencies covered by ADA and Section 504
1. What authority requires public agencies to make public right -of -way accessible
for all pedestrians with disabilities?
Public rights -of -way and facilities are required to be accessible to persons with
disabilities through the following statutes: Section 504 of the Rehabilitation Act of
1973 (Section 504) (29 U.S.C. §794) and Title 11 of the Americans with Disabilities
Act of 1990 (ADA) (42 U.S.C. §§ 12131 - 12164). The laws work together to achieve
this goal. (9- 12 -06)
2. What do these statutes require public agencies to do?
These statutes prohibit public agencies from discriminating against persons with
disabilities by excluding them from services, programs, or activities. These statutes
mean that the agency must provide pedestrian access for persons with disabilities
to the agency's streets and sidewalks, whenever a pedestrian facility exists.
Regulations implement this requirement by imposing standards for accessible
features such as curb cuts, ramps, continuous sidewalks, and detectable warnings.
(9- 12 -06)
3. Does the ADA require public agencies to provide pedestrian facilities?
No. However, when a public agency provides a pedestrian facility, it must be
accessible to persons with disabilities to the extent technically feasible.
5. What public agencies must provide accessible pedestrian walkways for persons
with disabilities?
All State and local governmental agencies must provide pedestrian access for
persons with disabilities in compliance with ADA Title 11. 42 U.S.C. §12131(1).
Federal, State, and local governments must provide pedestrian access for persons
with disabilities in compliance with Section 504 standards. 29 U.S.C. §794(a). (9-
12-06)
9. What is the public right -of -way?
The public right -of -way consists of everything between right -of -way limits, including
travel lanes, medians, planting strips, sidewalks, and other facilities. (9- 12 -06)
Projects Covered by the ADA and Section 504
16. What projects must provide pedestrian access for persons with disabilities?
Any project for construction or alteration of a facility that provides access to
pedestrians must be made accessible to persons with disabilities. 42 U.S.C. §§
12131 - 12134; 28 CFR §§ 35.150, 35.151; Kinney v. Yerusalim, 9 F.3d 1067 (3d
Cir. 1993), cert. denied, 511 U.S. 1033 (1994). (9- 12 -06)
17. What projects constitute an alteration to the public right -of -way?
An alteration is a change to a facility in the public right -of -way that affects or could
affect access, circulation, or use. Projects altering the use of the public right -of -way
must incorporate pedestrian access improvements within the scope of the project to
meet the requirements of the ADA and Section 504. These projects have the
potential to affect the structure, grade, or use of the roadway. Alterations include
items such as reconstruction, major rehabilitation, widening, resurfacing (e.g.
structural overlays and mill and fill), signal installation and upgrades, and projects of
similar scale and effect. (9- 12 -06)
18. What activities are not considered to be alterations?
The DOJ does not consider maintenance activities, such as filling potholes, to be
alterations. The DOJ does consider resurfacing beyond normal maintenance to be
an alteration. DOJ's ADA Title II Technical Assistance Manual, §11-6.6000, 1993.
The FHWA has determined that maintenance activities include actions that are
intended to preserve the system, retard future deterioration, and maintain the
functional condition of the roadway without increasing the structural capacity. These
activities include, but are not limited to, thin surface treatments (nonstructural), joint
repair, pavement patching (filling potholes), shoulder repair, signing, striping, minor
signal upgrades, and repairs to drainage systems. (9- 12 -06)
Timing of Accessibility Improvements
19. Does a project altering a public right -of -way require simultaneous accessibility
improvements?
Yes. An alteration project must be planned, designed, and constructed so that the
accessibility improvements within the scope of the project occur at the same time
as the alteration. 29 CFR § 35.151; Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir.
1993), cert. denied, 511 U.S. 1033 (1994).
The ADA does not stipulate how to perform simultaneous accessibility
improvements. For example, a public agency may select specialty contractors to
perform different specialized tasks prior to completion of the alteration project or
concurrently with an ongoing project. (9- 12 -06)
20. When does the scope of an alteration project trigger accessibility improvements
for people with disabilities?
The scope of an alteration project is determined by the extent the alteration project
directly changes or affects the public right -of -way within the project limits. The
public agency must improve the accessibility of only that portion of the public right -
of -way changed or affected by the alteration. If a project resurfaces the street, for
accessibility purposes the curbs and pavement at the pedestrian crosswalk are in
the scope of the project, but the sidewalks are not. Any of the features disturbed by
the construction must be replaced so that they are accessible. All remaining access
improvements within the public right -of -way shall occur within the schedule
provided in the public agency's planning process. (9- 12 -06)
22. When should accessible design elements be incorporated into projects in the
public right -of -way?
FHWA encourages the consideration of pedestrian needs in all construction,
reconstruction, and rehabilitation projects. If a public agency provides pedestrian
facilities, those facilities must be accessible to persons with disabilities. A public
agency is not relieved of its obligation to make its pedestrian facilities accessible if
no individual with a disability is known to live in a particular area. This is true
regardless of its funding source. DOJ's ADA Title 11 Technical Assistance Manual, §
11- 5.1000, 1993. (9- 12 -06)
Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993), cert. denied, 511 U.S. 1033 (1994)
The regulations concerning new construction and alterations are substantially more
stringent. When a public entity independently decides to alter a facility, it "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." This
obligation of accessibility for alterations does not allow for non - compliance based upon
undue burden.
Streets are considered existing facilities under the regulations.
If a street is to be altered to make it more usable for the general public, it must also be
made more usable for those with ambulatory disabilities.
New construction and alterations, however, present an immediate opportunity to provide
full accessibility.
Reichenback v. City of Columbus, 2006 WL 2381565 (S.D.Ohio)
Alterations of facilities, commenced after January 26, 1992, "by, on behalf of, or for the
use of a public entity in a manner that affects or could affect the usability of the facilities
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 and usable by individuals with
disabilities."
Facilities include roads and walks.
Culvahouse v. City of Laporte, Indiana, 2009 WL 5215367 (N.D. Ind.)
The ADA doesn't require installation of sidewalks where none currently exists.
New facilities -those built or altered after January 26, 1992 -must be made readily
accessible to and usable by individuals with disabilities
"This courts deigns to find that sidewalks are, in and of themselves, programs, services,
or activities for the purpose of the ADA's implementing regulations."
Under Title II, disabled individuals must be provided with "meaningful access" to a
public entity's programs and services.
"In sum, Title II requires...special accommodations for disabled persons in virtually
every interaction they have with the State."
cc: Michael C. Van Milligen, City Manager
Kelly Larson, Human Rights Director