Sunset Ridge Reconstruction_Citizen CommunicationsFrom: Jeff Eddy
565 Sunset Ridge
Dubuque, IA 52003
To: Michael Van Milligen, City Manager
Mayor Roy D. Buol
Council Member Ric W. Jones
Council Member David T. Resnick
Council Member Kevin J. Lynch
Council Member Karla A. Braig
Council Member Joyce E. Connors
Subject: Additional Information Concerning Sunset Ridge
The Letter
The ADA
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July 30 2010
Background
The residents of Sunset Ridge challenged the conclusions reached by Crenna Brumwell,
Assistant City Attorney in an April 16, 2010 memorandum to Gus Psihoyos, City
Engineer. The Assistant Attorney concluded in her letter that the Americans with
Disabilities Act (ADA) requires the City to install sidewalks on Sunset Ridge as part of
the reconstruction project.
I would hope all of you get a moment to look over some of the information I have
assembled. I really believe the April 16, 2010 Memorandum from the Assistant City
Attorney concerning Sunset Ridge and the ADA is problematic for the City, and may
actually increase the chances of the city having a 504 complaint. Each of you is aware of
my objections to the sidewalk proposal, and the attached summarizes my research into
the issue. Thank you for your consideration.
An August 16 2001 letter written by Michael Van Milligen, City Manager, to the
Mayor and City Council Members describes the possibility of Sunset Ridge, a private
street, becoming a city street. The letter (see attachment) states the residents would be in
favor of becoming a city street if the City agrees to build the street in the following
manner
• 23 -25' wide street
• Concrete curb and gutter
• No sidewalks
Further, the City Manager states these provisions, along with the Councils decision
whether or not to accept Sunset Ridge as a city street, will allow the City to properly plan
the Wartburg Place street project.
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op
The Assistant Attorney quoted court rulings that "sidewalks are, in and of themselves,
programs, services, or activities for the purpose of the ADA' s implementing regulations."
The Assistant Attorney determined the ADA defines a "facility" to include both
sidewalks and roadways and that facilities altered or newly constructed by, on behalf of,
or for the use of a public entity after January 26, 1992 be accessible for persons with
disabilities. "New construction is held to the highest standard of accessibility because the
cost including accessibility is minimal compared to the overall cost of construction."
At the 7/6/2010 City Council Meeting, Doug Henry, attorney representing the residents
of Sunset Ridge stated that his research into ADA requirements reached a different
conclusion than the Assistant Attorney. Doug stated the ADA recognizes sidewalks and
streets to be separate facilities, and the ADA does not require the installation of a new
facility (sidewalk) because of alterations being performed to an existing facility (steeet).
As proof, Doug stated his office contacted the Department of Justice (DOJ) which
confirmed his assertion the ADA does not require the installation of sidewalks where
none currently exist.
Legal
Background
Architectural Barriers Act (ABA) of 1968 : This was the first Federal law requiring
new facilities constructed for Federal agencies or with Federal funding to meet
accessibility standards (UFAS).
Rehabilitation Act of 1973, Title V, Section 504: Section 504 requires federally funded
facilities and programs to be accessible to people with disabilities.
Uniform Federal Accessibility Standards (UFAS, Federal Standard 795): The UFAS
defined the minimum standards for design, construction, and alteration of buildings to
meet the requirements of the ABA.
Americans with Disabilities Act of 1990 (ADA): ADA extends the coverage of the
ABA, and the Rehabilitation Act, Section 504 to include all public facilities regardless of
funding. The Title II implementing regulations for the ADA require all newly constructed
and altered facilities to be readily accessible to persons with disabilities. Transportation
agencies are responsible for developing a transition plan for removing the structural
barriers, including communication barriers, and providing access to existing pedestrian
facilities.
Discussion
Under the ADA, the Access Board is responsible for developing the minimum
accessibility guidelines needed to measure compliance with ADA obligations when new
construction and alterations projects are planned and engineered. ADA standards (ADA
Guidelines) for new construction and alterations are developed by the U.S. Access Board
and adopted by the U.S. Department of Justice (DOJ). In 1991, the original Guidelines
were approved by the DOJ and they principally addressed buildings and site work. The
Guidelines were not easily applicable to sidewalks, street crossings, and related
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pedestrian facilities in the public right -of -way. Similarly, Section 504 standards (UFAS)
is does not offer guidance appropriate for rights -of -way construction.
The Sunset Ridge Project is an Alteration Project with respect to ADA compliance -
not New Construction
At the July 6, 2010 Council Meeting, it appeared there was some confusion about Sunset
Ridge being either "new construction" or an "alteration ". The Assistant Attorney was
correct in her assertion that courts have clarified that "New construction is held to the
highest standard of accessibility because the cost including accessibility is minimal
compared to the overall cost of construction." But equally important is the ADA does not
recognize the Sunset Ridge project to be new construction and instead recognizes it to be
an Alteration Project.
In Kinney vs Yerusalim, the courts found that resurfacing a street constituted an
"alteration" in terms of ADA compliance and that: "resurfacing at its simplest is
paving, ' which consists of placing a new layer of asphalt over the old. In other
instances, a more complicated process of "milling" is used to ensure proper drainage or
contouring of the road. Milling requires the use of heavy machinery to remove the upper
2 to 31 /2.inches of asphalt. During an ordinary milling and resurfacing job, cracks in
the concrete base may be discovered, and, if so, repaired. The most extensive form of
resurfacing is `reconstruction,' which involves removal and replacement of both the
asphalt and the concrete or stone layers."
Alternatively, new construction is recognized by the ADA as new right -of -way
construction to include the application of municipal land development standards to new
subdivisions, the extension of an existing right -of -way into newly annexed territory, and
the master planning, design, and construction of a new town center.
Sidewalks are not required where presently there are none
Although the Assistant Attorney claimed in the April 16, 2010 memorandum that
sidewalks are required for the Sunset Ridge Project because of the ADA, her
memorandum fails to cite any specific court ruling or ADA Guideline which supports her
conclusion and instead appears to be a conceived summary of several unrelated court
findings. The Assistant Attorney also retreated in her conclusions at the July 6, 2010
Council Meeting by stating it was a "gray area ".
But it does not appear to be a "gray area" in one of the court cases referenced by the
Assistant Attorney in the memorandum. In Cuvahouse vs. LaPorte, Indiana, the plaintiff
acknowledged the ADA doesn't require installation of sidewalks where none currently
exist. The court used in part the rationale "sidewalks are, in and of themselves,
programs, services, or activities for the purpose of the ADA' s implementing regulations"
to determine cities were responsible for maintenance of existing sidewalks. There was no
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ruling, in this or others cited cased used by the Assistant Attorney, requiring the
installation of sidewalk where none currently exist.
This was also not a "gray area" for the Public Rights -of -Way Access Advisory
Committee (PROWAAC). This federal advisory committee was formed to develop
recommendations that could supplement or replace the current standards. PROWAAC
completed its initial work in 2000 and published its recommendations for new guidelines
(PROWAC Report). The PROWAC Report conceded "the ADA does not require the
construction of sidewalks in public rights -of -way, but only requires that, where provided,
such facilities meet the standards for accessibility, and that it is not within the purview of
this committee to alter the scope of the law." On June 17, 2002, the Access Board issued
a Notice of Availability of Draft Public Rights -of -Way Accessibility Guidelines
(PROWAG) based on the PROWAAC report. The 2005 draft PROWAG has not been
adopted by the DOJ or the DOT, but has been identified by DOT as the current best
practice in accessible pedestrian design under the Federal Highway Administration's
Federal -aid (504) regulation.
Additionally, Doug Henry stated at the July 6, 2010 Council Meeting that his office
contacted and confirmed with the DOJ that the ADA does not require sidewalks to be
installed where none currently exist.
The Assistant City Attorney's 4/16/2010 letter concludes the City has and continues
to violate ADA guidelines
As discussed above, the Sunset Ridge project is considered an alteration project in terms
of ADA Guidelines, not new construction. If the City agrees with the Assistant City
Attorney's 4/16/2010 letter stating sidewalks are required for the Sunset Ridge project to
meet ADA compliance, than the City must also conclude that it has and continues to
commit numerous ADA violations.
As discussed above, ADA Guidelines and the courts have concluded that resurfacing and
milling projects are alteration projects. Since 2004 and in the near vicinity of Sunset
Ridge, Cross St., Moore Heights, and Simpson St. (west of Moore Heights), have been
resurfaced. Each of these projects are considered alteration projects in terms of ADA
compliance. None of these streets were required to install sidewalks as part of the project
scope even though the Assistant Attorney has taken a position that sidewalks are required
for alteration projects. The city regularly and yearly resurfaces streets without
consideration of sidewalks.
City Code does not require sidewalks for street reconstruction projects
The Unified Development Code, City of Dubuque, addresses sidewalks in Section 3
(Land Development Regulations), article 11 (Land Subdivision). Article 11.2, which is
the applicability of Article 11 states that "(t)hese regulations shall apply to all land to be
divided which is within the limits of the City or within two miles of the limits of the City as
allowed by State law ". In short, City Code does not address sidewalks or the lack thereof
on existing city right -of -way.
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Sidewalks vs. Safety
The residents have heard that the installation of sidewalks along streets is safer and
provides more accessibility than without. But it is not true to state the converse of this
argument that streets are not safe and not accessible without sidewalks. The lack of
detailed ADA Guidelines. and Section 504 standards providing detailed design guideline
for right -of -ways underscores the difficulty in developing standards appropriate for all
circumstances. There is little available statistical evidence that supports sidewalks are
needed to ensure an appropriate level of safety and accessibility because pedestrian safety
is a factor of many things that ultimately contribute to the incidence of people and
vehicles. In the Sunset Ridge area, lots are so large that children are not inclined to play
in the street and development is so spread out and distances between house and schools,
stores, and public transportation terminals are great enough to discourage walking. None
of these factors have been taken into consideration in the proposed street project. If
sidewalks were a necessary requirement for safety, should the city install sidewalks along
roadways in its own park systems? Should the city consider adopting a "sidewalks in
reconstruction areas" policy based on something other than a least common denominator
approach? Why, in 2001, would the City support Sunset Ridge without sidewalks if it
was not deemed to be a safe design for pedestrians?
Attachment: MCM 8 -16 Memo
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MEMORANDUM
August 18 2001
TOT The P-1,0norab1e Mayor arld Cy Coma mentos
FRM: Wheal C. %fan Mt Igo, City Manager
SUBJECT: Sunset Ridge •
At the August e pubk • hearing on the Warexiig Plus Street Reconentelbn Proiect,
City Council beg ett distuasion OTP tie pelaiblity at at Rite a print* sheet.
becoming a oly Oak
Gmeapondence tun the Sweet Ridge rieighboitmd indicate tot en weiwbebring
rnsiarRy lathe rr favor booming e public Vise Wthe City would awes to build
that steel into
1: 25' wide figrust ivtito the earepticin ef first NY at the &beet roomed to 23' to
preserve trees, parOcuiarty a 7Shyaer-old gram (Opine Imes.
2. Pavement IA caulk la Ar essiN&121:F base stone wild 2.5° wide conwste
curb aired gutter en both &kir-
a Fie sidewalks.
Wiwi this CAI" Council dateffircirtea a course of action kr Suva Ridge, the WO
home *Wad P Wartbuig Piece can ten be dedded. Mined Ridge
becornes plibffe *est, Um le no need for a ean-emand At* mid of Wertbupg
Mace If Sunset /tote does. nut become a publio Mot, datennklation would need
be made as Vit'rettlar the forn-arbund it the and of Millbury Plaoa la a oulladommac cr
a harkrobrilloci queetion 440 dB reinOltio about the Installstiorraf slciewalk de the
vest 04de at Y4tanhvg Place.
C. limn /Mon
MCV1A191
Atiachrnark
ec: Barry Undahi, Cafporalien CoureeE
Cif asinhauser, Assivtarit CAty Ammer
kiicheel A Koch. Public Works Director