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HomeMy WebLinkAboutCOM 0580.011 2000-2002 ~ ~ O F ry, aJP .~}~9¦ 7i I)ISA~ILITY Al~D COM1VIUl~ICATI01~ A,CCLS~ I30~I~ , ~ 919 Ala Moana Boulevard, Room 101 • Honolulu, Hawaii'9f~ l4 ` ~ o-`~ Ph. (808) 586-8121 (V/TDD) • Fax (808) 586-8129 } ~ iii is :7 Apri124, 2002 r` _ ; , : , Mr. Galen Kuba Director of Environmental Management County of Hawaii Hawal'i County Building 25 Aupuni Street Hiio, HI 96720 Regarding: Hawaii County Bill 225 Regarding Sidewalks and Ordinances Dear Mr. Kuba, In follow-up to our phone conversation, I am providing you with the following technical assistance and recommendation for proposed language in Hawaii County Bill 225 as it relates to Section 22-4.3(h). As Council member Leningrad Elarionoff s letter to Mayor Kim was also forwarded to me for comment by Mr. Andy Levin, I am copying this response to those parties as well. I understand that the bill will be taken up again by the County Council on May 1, 2002. The bill, as currently drafted, states in part: 22-4.3(h) The applicant shall repair, restore, or replace all portions of a county street, including but not limited to utilities, drainage ways and structures, traffic markings and designs, driveways and private property that had been altered, broken up, dug up, disturbed, undermined, dug under or otherwise damaged during obstruction to a state equal to or better than its original condition. Regardless of existing conditions, work shall also include the construction of new curb cuts far the di~ahled, accesss_ble driveways or other i.n,prnveg„entc such that all repair, restoration or replacement work comply with the current requirements of the Americans with Disabilities Act. I hope the information presented below will help in clarifying the requirements of the Americans with Disabilities Act (ADA) as well as the Americans with Disabilities Act Accessibility Guidelines (ADAAG) and, perhaps, respond to the concerns of the utility companies on the bill. I would emphasize that the following is not legal advice, but informal technical assistance or. the matter. You may wish, in addition, to discuss the issue, especially the proposed language changes at the conclusion of the letter, with Corporation Counsel for Hawaii County. Exemptions under the ADA Hawaiian Electric Light Company (HELLO) and Verizon Hawaii,object to the. ~ang~~ag~ and- suggest that the language be amended to provide for exemption from ADA €~all~i~~c ;by tlae director, upon deter~runation that the exemption is in the overall interest of e general p€iblic. ~y Mr. Galen Kuba Director of Environmental Management Page 2 Apri124, 2002 The federal government does not grant authority to any state or local entity to provide for an exemption from the federal requirements of the ADA. The County certainly has the authority to eliminate any work requirements from the scope of any utility project, although such an action would then shift any responsibility and financial burden to the County, if the .4.DA requires conformance. Furthermore, the County certainly can condition any access to work in the public right-of-way on meeting a multitude of conditions, ADA or otherwise. In a technical assistance letter from the Department of Justice (see enclosed Department of Justice letter dated April 25, 1996), the Department clarified that, while a utility company is not directly subject to Title II of the Americans with Disabilities Act, it does not mean That muncipal governments may not require utilities to construct curb ramps when the utilities' construction projects involve alterations to public streets and sidewalks. The Department of Justice's regulations do not limit the types of arrangements that municipal governments may utilize to ensure that they meet their obligations to comply with Title II. If an ADA obligation for the County does exist during an alteration of the public right-of- way, anexemption for a utility would not exempt the County from the obligation and financial responsibility. General Alterations Requirements and Obligations The basic requirements for an alteration under ADAAG are as follows: (1)(a) No alteration shall be undertaken which decreases or has the effect of decreasing accessibility or usability of a building or facility below the requirements for new construction at the time of alteration. (b) If existing elements, spaces, or common areas are altered, then each such altered elements, space, feature, or area shall comply... (c) If alterations of single elements, when considered together, amount to an alteration of a room or space in a building or facility, the entire space shall be made accessible. (ADAAG x.1.6) There is a specific duty to install curb ramps in alterations of the street. Curb ramps. (11 Newly constructed or altered streets, roadways, and high~arays must contain curb ramps or the sloped areas at any intersection having curb or other barriers to entry from 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. (ADA Title II, §35.151 (e)) As a further point of clarification, the State Department of Transportation requires that curb ramps be installed as part of resurfacing projects (see enclosed Department of Transportation memorandum dated March 25, 2002) pursuant to the Kinn~ v. Yersalim, 9 F.3d 1067, 3d. Cir. 1993, (not enclosed) and the Department of Justice (see enclosed Department of Justice technical assistance letter dated April 17, 1998). Mr. Galen Kuba Director of Environmental Management Page 3 Apri124, 2002 Alterations and Technical Infeasibility The testimonies of both companies state a concern that the ADA would require them to increase the scope of the work project unreasonably. " would require a utility that has performed construction activities in a County street to restore the street to meet the current requirements of the Americans with Disabilities Act (ADA), even if the condition of the roadway at the commencement of construction did not meet ADA requirements." (HELLO testimony of April 17, 2002) We believe there is a misunderstanding as to what the ADA and the ADAAG requires. A change to an existing public right-of--way is considered an alteration. When an alteration is undertaken, there are limitations under the ADAAG, to the alteration. The ADAAG states: in alteration work, if compliance with 4.1.6 is technically infeasible, the alteration shall provide accessibility to the maximum extent feasible. Any elements or features or features of the building or facility that are being altered and can be made accessible shall be made accessible within the scope of the alteration. Technically infeasible means, with respect to an alteration of a building or a facility, that it has little likelihood of being accomplished because existing structural conditions would require removing a load bearing member when is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features which are in full and strict compliance with the minimum requirements for new construction and which are necessary to provide accessibility." ADAAG 4.1.6(1)(j) Since the ADAAG has, within it, limits due to technical infeasibility, the ability to bring an existing property up to the requirements of new construction may be tem~red. In other words, "complying with ADAAG" may consist of an alteration which is undertaken, subject to technical infeasibility limitations, but otherwise undertaken to the maximum extent feasible. The determination of what is feasible must be done on a site-by-site basis, not anacross-the-board exemption. In fact, when all work in the public right-of--way is submitted to our office for review under state law, I~awaii Revised Statutes 103-50, a form has been developed to document when such improvement is deemed to be technically infeasible. Furthermore, the belief that the ADA would require ramps where there are no sidewalks or installation of new sidewalks where none exists is a misconception (see same enclosed Department of Justice letters of Apri13, 1996 and April 17, 1998). Pro op sed Chanties It is possible that the language in the ordinance "regardless of existing conditions..." has led the utilities to infer that the County would require them to restore an area to new construction standards 100°Io. Although we certainly do not believe this is required, we recommend a slight change in the wording as follows to remove that ambiguity: 22-4.3(h) The applicant shall repair, restore, or replace all portions of a county street, including but not limited to utilities, drainage ways and structures, traffic markings and designs, driveways and private property that had been altered, broken up, dug up, disturbed, undermined, dug under or otherwise damaged during obstruction to a state equal to or better Mr. Galen Kuba Director of Environmental Management Page 4 Apri124, 2002 than its original condition. [Regardless of existing conditions, work shall also include the construction of new curb cuts for the disabled, accessible driveways or other improvements such that a] All repair, restoration or replacement work shall comply with the current requirements of the Americans with Disabilities Act, including the construction of curbs cuts, accessible driveways. or other improvements for persons with disabilities. I believe that the above changes, along with an understanding of the ADAAG requirements and the limitations of technical infeasibility, would clarify the language. No other language relating to any exemptions is recommended. Should you have any further questions, please feel free to contact me at (808) 586-8121. Sincerely, ~ FRANCINE WAI Executive Director Enclosures c: ? 'The Honorable Leningard Elarionoff Council Member Hawaii County Council Andy Levin ADA Coordinator ~Nage 1 of # 192 DJ 202-012 II-1.2000 II-1.3000 II-5.3000 II-6.0000 April 25, 1996 Ms. Crystal Beutler Paralegal Pacific Telesis Legal Group 525 B Street, Suite 900 San Diego, California 92101 Dear Ms. Beutler: I am responding to your inquiry of March 14, 1996, on behalf of Pacific Bell regarding the application of the Americans with Disabilities Act of 1990 (ADA) to the obligations of a telephone service provider when it installs telephone lines and facilities on or under public streets. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA's requirements. It does not, however, constitute a legal interpretation or advice, and it is not binding on the Department. Your letter states that municipal governments in California are requiring Pacific Bell to install curb ramps whenever Pacific Bell performs construction work in the public streets. Pacific Bell objects to this requirement, asserting that it should not be required to install these curb ramps because Pacific Bell is not a public entity subject to title II of the ADA. You have asked the Department to clarify Pacific Bell's obligations under title II. Title II of the ADA provides that [N]o 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. 42 U.S.C. 12132. State and local governments and any departments, agencies, or instrumentalities of State and local governments are public entities subject to title II. Under these definitions, it is clear that only public entities and individuals acting on behalf of public entities have an obligation to comply with title II. A private corporation that operates pursuant to a franchise or license issued by a State or local government usually would not be considered to be a public entity subject to title II. however, the fact that Pacific Bell is not directly subject to title II does not mean that municipal governments may not Yage "L of require Pacific Bell to construct curb ramps when its construction projects involve alterations to public streets and sidewalks. The ADA recognizes that public entities employ many different methods of operating their programs. Therefore, the Department's regulations do not attempt to limit the types of arrangements that municipal governments may utilize to ensure that they meet their obligation to comply with title II. Municipal governments may exercise the full range of authority permitted to them by State law when they are developing their compliance plans. Therefore, nothing in the ADA regulations would prohibit California municipalities from requiring Pacific Bell to install curb ramps when it undertakes construction projects. I hope that this information assists you to understand the requirements of the ADA. Sincerely, John L. Wodatch Chief Disability Rights Section STATE OF HAWAII DEPARTMENT OF TRANSPORTATION 1ViENiOItANDUM OCR-A 1.4202 March 25, 2002 TO: HWY, HWY-K, HWY-M, HWY-H, I-IWY-O, UWY-D, HWY-DD, HWY-DS, AND HWY-T THRU: OCR FROM: OCR-A, (Michael K. Medeiros) SUBJECT: COUNTY FEDERAL AID RESURFACING PROJECTS Reminder Please note that the Courts have determined that resurfacing projects are considered alterations under the Americans with Disabilities Act (ADA). As such curb ramps are required to bE constructed on all resurfacing projects. [REF Kinney v Yerusalem, 3`d Circuit Court of Appeals, 1993] All of the Counties have entered into consent decrees to install curb ramps under a transition plan. The installation of ramps under the consent decree does not waive the Counties obligation to install ramps on resurfacing projects at the time they are resurfacing. The Kinney decision states: "Thus, under the scheme of the regulations, the obligation to prepare and implement a transition plan does not replace the separate and distinct obligation to install curb ramps when streets are altered." When you are reviewing/approving aCounty Federal A.id resurfacing project curb ramps must be called out. The County may not defer the installation of the ramps with the explanation that the ramps are programmed to be installed later under their transition plan. If you have any questions concerning this or would like a copy of the court decision, please contact me at 587-7584. Yage 1 of 1 APR 17 1998 XXX XXX Oklahoma City, OK XXX Dear Mr. XXX I am responding to your letter regarding the requirements of the Americans with Disabilities Act (ADA) for curb ramps and sidewalks at public streets and intersections. You have questioned decisions by Oklahoma City to install curb ramps leading from public streets to impassable areas where there are no sidewalks. According to your letter, Oklahoma City officials claim that these actions are required by the ADA. Title II of the ADA prohibits discrimination on the basis of disability by State and local government entities. When public entities build new facilities or alter existing facilities, the Department of Justice's regulation implementing title II (enclosed) requires that the newly constructed or altered areas be made accessible to individuals with disabilities. The regulation specifically provides that new construction of or alterations to streets give rise to accessibility obligations for curb ramps. 28 C.F.R. S 35.151(e). Therefore, if Oklahoma City constructs a new street or intersection or alters an existing street or intersection, it is required to provide accessible curb ramps where pedestrian walkways that are elevated or curbed intersect with the new or altered street or intersection. 28 C.F.R. S 35.151(e)(1). Notably, resurfacing of streets gives rise to these obligations, as resurfacing is considered to be an alteration within the meaning of the ADA. See Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993). In addition, if Oklahoma City builds or alters a pedestrian walkway, it may be required to provide curb ramps where the walkway intersects streets or intersections. 28 C.F.R. S 35.151(e)(2). However, the ADA does not require installation of ramps or curb ramps where there is no pedestrian walkway. cc: Records; Chrono; Wodatch; Blizard; FOIA. blizard\myfiles\drsltrs\XXX - 2 - Of course, the ADA does not prevent a public entity from exceeding the requirements of the ADA. Nor does it limit a public entity' s discretion to a~ov'~, ng,~ oPCiP~rri y,~a t kw,a~ and ramps as it sees f it to serve iNt~~.~,~.5~„e.~, addi t i nn to accessibility. I hope this information is helpful to you. As you requested, we are returning the photographs enclosed with your letter. Sincerely, John h. Wodatch Section Chief Disability Rights Section Enclosures Yage 1 of Z # 188 II-5.3000 II-6.0000 II-6.6000 April 3, 1996 The Honorable Robert S. Walker U.S. House of Representatives 2369 Rayburn Building Washington, D.C. 20515-3816 Dear Congressman Walker: Your letter to the U.S. Department of Transportation on behalf of your constituent, Ms. XXXXXXXXXXXXXX, regarding the requirements of the Americans with Disabilities Act (ADA) for curb ramps and sidewalks at public streets and intersections, was forwarded to me for comment. Ms. XXXXXX has questioned decisions by North Coventry Township, Pennsylvania, to install curb ramps leading from public streets to impassable areas where there are no sidewalks. According to your letter, officials of North Coventry Township claim that these actions are mandated by title II of the ADA. Title II of the ADA prohibits discrimination on the basis of disability by State and local government entities. When public entities build new facilities or alter existing facilities, the Department of Justice's regulation implementing title II (enclosed) requires that the newly constructed or altered areas be made accessible to individuals with disabilities. The regulation specifically provides that new construction of or alterations to streets give rise to accessibility obligations for curb ramps. 28 C.F.R. 35.151(e). Therefore, if the North Coventry Township were constructing a new street or intersection or were altering an existing street or intersection, it may be required to provide accessible curb ramps ar ramps where pedestrian walkways that are elevated or curbed intersect with the new or altered street or intersection. 28 C.F.R. • 35.151(e)(1). Notably, resurfacing of streets gives rise to these obligations, as resurfacing is considered to be an alteration within the meaning of the ADA. See Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993). In addition, if North Coventry Township were building or altering a pedestrian walkway, it may be required to provide curb ramps or ramps as needed where the walkway intersects streets or intersections. 28 C.F.R. • 35.151(e)(2). However, the new construction and alterations provisions of title II do not require installation of ramps or curb ramps in the absence of a pedestrian walkway. Nor are they required in the absence of a curb, elevation, or other barrier between the street and the walkway. Therefore, curb ramps or ramps leading to vacant grass lots are not required by the ADA. Of course, the ADA does not prohibit North Coventry Township from exceeding the requirements of the ADA. Nor does it limit Wage l of 1 the State's discretion to provide new pedestrian walkways and ramps as it sees fit to serve interests in addition to accessibility. I hope this information is helpful to you in responding to your constituent. Sincerely, Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosure .