City Attorneys Department Spring Conference
League of California Cities
May 1-3, 2002
Gerald C. Hicks
Deputy City Attorney
Sacramento
Disability Access Laws and
Public Rights of Way
TABLE OF AUTHORITIES
FEDERAL CASES
Bonner v. Lewis
857 F.2d 559 (9th Cir. 1988)
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3
Brown v. 1995 Tenet Paraamerica Bicycle Challenge . . . . . . . . . . . . . . . . . . . . . 6
959 F.Supp. 496 (N.D.Ill. 1997)
Kinney v. Yerusalim .. . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 15
9 F.3d 1067 (3rd Cir. 1993)
Weinreich v. Los Angeles County Metro. Trans. Auth. . . . . . . . . . . . . . . . . . . . . 3
114 F.3d 976 (9th Cir. 1997)
Zimmerman v. State Dept. of Justice
170 F.3d 1 169 (9th Cir. 1999)
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FEDERAL STATUTES
Title II Americans With Disabilities Act . . . . . . . . . . . . . . . . 1, 3, 4, 5, 7, 10
Title Ill Americans With Disabilities Act
Rehabilitation Act of 1973
.......................... 6
. . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4, 5, 7, 10
FEDERAL REGULATIONS
Code of Federal Regulations Section(s)
28
28
28
28
28
28
28
28
28
C.F.R. 35.104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6
C.F.R. §35.150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10
C.F.R. §35.150(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C.F.R. 35.150(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C.F.R. 35.150(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C.F.R. §35.150(d)(3) . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C.F.R. §35. 151 . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 4, 10, 13
C.F.R. §35.151(b) . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 13
C.F.R. §35.151(e) . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 10, 15
Disabilities Act Accessibility Guidelines (ADAAG)
2, 6, 7, 11, 12, 13
TABLE OF AUTHORITIES
CALIFORNIA STATUTES
California Government Code Section(s)
§4450
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§4456 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 15
§11135
3, 4
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CALIFORNIA REGULATIONS
22 C.C.R. 98010
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Title 24 of the California Code of Regulations
contained in California Building Code
California Building Code
Uniform Building Code
. . . . . . . . . . . . . . . . . . . . 11
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
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CALIFORNIA ATTORNEY GENERAL OPINIONS
57 Ops.Atty.Gen. 186 (1974)
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58 Ops.Atty Gen. 512 (1975)
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OTHER SOURCES
ADA Technical Assistance Manual
...... ....................... 7
American Standards Association (ASA) Specifications A 117.1-1961
ii
. . 12
DISABILITY ACCESS LAWS AND PUBLIC RIGHTS OF WAY
1. INTRODUCTION:
In March 1999, the City of Sacramento was named as the defendant in a federal
lawsuit brought by a class composed of disabled individuals.1 The lawsuit was brought
under federal law (Title II of the Americans with Disabilities Act and Rehabilitation Act of
1973) and California state law (Government Code §4450 et seq.). 2 The lawsuit included
three basic claims: that the City had failed to comply with that portion of Title II requiring
public entities to include "a schedule for providing curb ramps or other sloped areas" within
its transition plan; had failed to construct curb ramps when the City altered "sidewalks,
streets, roads and/or highways" since the effective date of the ADA; and had failed to
maintain its "program" of "roads, walks, and passageways" so that they were accessible.
The last of these claims, that public sidewalks constitute a "program" and therefore
must be made presently accessible, could potentially result in an economically debilitating
obligation - the replacement of existing sidewalks. With respect to this claim, the federal
district court granted the City of Sacramento's motion holding that sidewalks are not
"programs" and therefore are not required to be "accessible." The issue was appealed to
the Ninth Circuit Court of Appeal where it is currently under consideration. It is an issue of
first impression with national implications. Amicus briefs were filed on behalf of the
appellant disabled individuals by various disability rights organizations and by the United
States Department of Justice. An amicus brief was filed on behalf of the City of
Sacramento by the National League of Cities and various members of the League of
California Cities.
This paper discusses the requirements of federal and state disability access laws
and their application to public rights of way. Within the context of this discussion, the paper
sets forth the arguments being made by disability rights advocates and the Department of
Justice that a city's existing sidewalks must be made accessible.
2. THE COMPETING INTERESTS:
There is no dispute that public rights of way (particularly sidewalks) are of vital
importance to the disabled community. For those in wheelchairs, sidewalks provide the
1
Barden. et al. v. City of Sacramento, No. 01-15744 {91h Cir. 2001)
The state law claims have not yet been addressed by the parties. However,
because state "program accessibility" and new construction claims are similar if not
duplicative to those under the ADA and Rehabilitation Act, any ruling on the federal
claims may preclude or moot the state claims.
2
1
basic means of traversing city streets. Obstacles in the "path of travel" such as utility or
telephone poles or trees as well as excessive cross slopes3 and broken or displaced
concrete make travel in a wheelchair on the sidewalks difficult and sometimes dangerous.
Though not insensitive to these concerns, a substantial replacement of the
sidewalks in even a modest sized city is cost prohibitive. For many California cities, such
as Sacramento, the infrastructure may date back more than a century. One estimate of
a per mile sidewalk construction cost is $36,000. 4 Replacing even a modest portion of the
sidewalks in any city to eradicate these "obstacles" in the path of travel would monopolize
the public works budget of any city.
The disability access laws, for the most part, balance accessibility in "facilities" with
cost concerns by providing for an incremental increase in disabled access at the time of
construction of new facilities or at the time of alteration of existing facilities while requiring
that "programs, services and activities" of a public entity (usually presented or available in
an existing facility) be presently accessible to the disabled. This incremental change in
making buildings and other "facilities" accessible can be a fairly slow process and
arguments that sidewalks are "programs" and therefore must be immediately accessible
may have grown out of impatience with this concept.
3. PROGRAM ACCESSIBILITY
A. THE STATUTES
Section 504 of the Rehabilitation Act of 1973, upon which Title II was modeled,
provides in pertinent part:
(a) No otherwise qualified individual with a disability in the
. shall, solely by reason of his or her
United States
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.
(b) For the purposes of this section, the term "program or
activity" means all of the operations of -
3 A cross slope is "[t)he slope that is perpendicular to the direction of travel."
Americans with Disabilities Act Accessibility Guidelines (ADAAG) §3.5 Definitions.
4 This was the cost set forth in the amicus brief of the National League of Cities
and 76 California cities in the Barden matter and taken from: Florida Department of
Transportation, Cost of Urban Transportation Systems. Unit Cost for Bicycle and
Pedestrian Facilities (1996).
2
In order to prevail on a claim under the Rehabilitation Act, a plaintiff must prove: (1) he or
she is a "qualified individual with a disability"; (2) he or she was denied the benefits of a
program solely by reason of the disability; and (3) the program received Federal financial
assistance. Bonner v. Lewis, 857 F.2d 559, 562-63 (9th Cir. 1988).
Title II of the Americans with Disabilities Act (42 U.S.C §12132), modeled after the
Rehabilitation Act, also precludes discrimination based on a disability as to the services,
programs and activities of a public entity:
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.
In order to prove a violation of Title II, a plaintiff must demonstrate: (1) he or she is a
"qualified individual with a disability"; (2) he or she was either excluded from participation
in or denied the benefits of a public entity's "services, programs or activities," or was
otherwise discriminated against by the public entity; and (3) such exclusion, denial of
benefits or discrimination was by reason of the disability. 42 U.S.C. §12132; Weinreich v.
Los Angeles County Metro. Trans. Auth., 114 F.3d 976, 978 (9th Cir. 1997).
California Government Code §11135, also modeled after the Rehabilitation Act,
provides in pertinent part:
(a) No person in the State of California shall, on the basis of
. . . disability, be unlawfully denied full and equal access to
the benefits of, or be unlawfully subjected to discrimination
under, any program or activity that is conducted, operated, or
administered by the state or by any state agency, is funded
directly by the state or receives any financial assistance from
the state.
(b) With respect to discrimination on the basis of disability,
programs and activities subject to subdivision (a) shall meet
the protections and prohibitions contained in section 202 of the
Americans with Disabilities Act of 1990 (42 U.S.C. Sec.
12132), and the federal rules and regulations adopted in
implementation thereof, except that if the laws of this state
prescribe stronger protections and prohibitions, the programs
and activities subject to subdivision (a) shall be subject to the
stronger protections and prohibitions.
Each of these statutes sets forth a standard of "program accessibility." That is, they
require that a public entity make its "programs, services and activities" accessible to the
3
disabled.
B. THE REGULATIONS
(1) The ADA
The Department of Justice, in promulgating regulations to effectuate Title II of the
ADA, created two basic sets of requirements. One addresses "existing facilities;" the other
addresses new construction (i.e. new facilities) and alterations to existing facilities. The
primary regulation pertinent to "existing facilities" is 28 C.F.R. §35.150. Echoing the
language of the Congressional statute, subsection (a) requires a public entity to "operate
each service, program, or activity so that the service, program or activity, when viewed in
its entirety, is readily accessible to and usable by people with disabilities."5 Thus, this
regulation, applicable to "existing facilities" (i.e. those in existence on the date the ADA
became law), does not require that the facilities be accessible; only that the "services,
programs and activities" typically offered within those facilities be accessible.6 In addition
to the general requirement of "program accessibility" set forth in subsection (a), 28 C.F.R.
35.150(d)(2) sets forth a singular provision with respect to the provision of curb ramps:
If a public entity has responsibility or authority over streets,
roads or walkways, its transition plan shall include a schedule
for providing curb ramps or other sloped areas where
pedestrian walks cross curbs . . .7
Also at issue in the dispute is a contention that sidewalks and other public rights-of­
way are "facilities" under the ADA and Rehabilitation Act. " Facility" is defined under 28
C.F.R. 35.104 to mean "[a]ll or any portion of buildings, structures, sites, complexes,
equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots,
or other real or personal property, including the site where the building, property, structure
or equipment is located."
5 Regulations promulgated under the Rehabilitation Act are substantially similar
to those promulgated under Title II and will not be set forth here.
6 The regulation pertinent to new construction/alteration, 28 C.F.R. §35.151, is
discussed infra.
Curb ramps, like public sidewalks, are not "services, programs or activities" of a
public entity. There is thus a potential argument that the requirements concerning curb
ramps in 28 C.F.R. 35.150 and 35.151 are beyond the authority of the Department of
Justice. The converse of this argument is that, assuming the Department does have
authority to regulate curb ramps as "services, programs and activities" then presumably
it has authority to regulate sidewalks.
7
4
(2) Government Code 11135
Regulations pertinent to Government Code 11135 are found at 22 California Code
of Regulations (C.C.R.) §98000 et seq. Section 98010 sets forth definitions of terms used
in the statutory and regulatory schemes. Of pertinence to our discussion are the definitions
of "program or activity."
"Program or activity" means any project, action or procedure undertaken
directly by recipients of State support or indirectly by recipients through
others by contract, arrangements or agreements, with respect to the public
generally or with respect to any private or public entity. Such programs or
activities include, but are not limited to, the provisions of employment or
goods; the procurement of goods or services; the provision of education,
training, health, welfare, rehabilitation, housing, or other services; the
provision of cash or loan assistance; or the provision of facilities for
furnishing services, financial aid or other benefits. .
C. THE ARGUMENTS: PUBLIC RIGHTS-OF-WAY
AS "PROGRAMS" AND " FACILITIES."
(1) Summary of Arguments of Appellants and the Department of Justice
In the case of Barden v. City of Sacramento, the appellants argued that public
sidewalks or a city's "system" of public sidewalks constituted both a "program" and a
"facility" under Title II of the ADA and the Rehabilitation Act of 1973. Appellants' argument
was based on two inarguable propositions: (1) that Title II of the ADA is interpreted and
was intended to be interpreted very broadly to eradicate all forms of disability discrimination
in government services and programs; and (2) sidewalks are vitally important to the
disabled. Therefore, according to appellants Title II of the ADA must include sidewalks as
"programs." The District Court rejected this argument ruling that sidewalks did not
constitute a "program" or "facility" under Title II or the Rehabilitation Act.
The United States Department of Justice filed an amicus brief on behalf of the
appellants. The Department somewhat modified the appellants' argument. Rather than
contending that the sidewalks themselves constituted a "program," the Department argued
that the "maintenance, provision and construction" of sidewalks constituted a "program,
service or activity." Like appellants, the Department relied primarily upon the generally
broad reach of the ADA and Rehabilitation Act.
A cornerstone of both arguments is the proposition that public rights-of-way
constitute "facilities" under the definition of that terms set forth in 28 C.F. R. §35.104. We
begin with an analysis of this argument.
5
(2) Analysis of Arguments
(A) Sidewalks as " Facilities"
Both appellants and the Department of Justice argue that sidewalks are "facilities"
under the ADA.8 The argument is that public rights-of-way are facilities is based on the
language of 28 C.F.R. §35.104. In that provision, "facilities" are defined to include "walks"
and "roads." However, a reading of that provision within the context of Title II, particularly
other regulations and the Americans with Disabilities Access Guidelines ("ADAAG")
establishes that it is only those "walks" and "roads" that provide egress from the facility that
are considered within the definition of "facility." This is the conclusion reached by the court
in Brown v. 1995 Tenet Paraamerica Bicycle Challenge, 959 F.Supp. 496 (N.D.III. 1997).
Referring to the duplicate definition of "facility" set forth in 28 C.F.R. §36. 104 (applicable
to Title Ill) the court stated: "The regulations do use the word "roads" as part of the
definition of facility, but that does not mean all roads are places of public accommodation.
Rather, the court understands this definition to mean that any roads or walkways or other
means of egress which are connected to a building or other structure are included in the
definition of facility." ld. at 499 n. 1.
In addition, read in conjunction with the other regulatory provisions, it is clear that
"facility" refers to a physical structure where a public entity's "services, programs or
activities" are provided. For example, if sidewalks are "facilities" then they are presumably
subject to the requirements for "facilities" under 35.150(d). Under that provision, a public
. [sidewalks] that limit
entity was to have "identified physical obstacles in the
.", to "[s]pecify the schedule for taking the steps
accessibility of its programs
necessary to achieve compliance" and to have completed all structural changes to the
sidewalks within three years of the applicable date of the ADA (January 26, 1995). (28
C.F.R. §35.150(c) & (d)(3).) Thus, within a three year period of the enactment of the ADA,
a public entity was to have surveyed all of its buildings, sidewalks and curb ramps,
prepared a transition plan identifying physical obstacles in the buildings and sidewalks and
detailing the methods for addressing those obstacles and to have actually made the
structural changes to the buildings and sidewalks and to have installed curb ramps. The
magnitude of this obligation argues against its existence.
The content of the ADAAG similarly dispels the notion that sidewalks are "facilities."
The ADAAG also contains a definition of "facility" consistent with that set forth in the
8 It is somewhat unclear why appellants and the Department make the argument
that sidewalks are both "facilities" and "programs." However, there are standards for
"facilities" (e.g. ADAAG) but no standards for "programs." Therefore, making the
argument that sidewalks are "facilities" allows the proponents of this position to argue
for the application of standards under ADAAG. However, as explained infra, the
ADAAG standards are for "walkways" which are on the site of a "facility" (not public
sidewalks unattached to a facility) and are "new construction" standards.
6
regulations under Title II: A "facility" is defined as "[a]ll or any portion of buildings,
structures, site improvements, complexes, equipment, roads, walks, passageways, parking
lots or other real or personal property located on a site." (ADAAG §3.5 "Definitions") This
definition makes no sense if sidewalks are considered "facilities" as the "site" is the entire
city. "Accessible route" is defined in §3.5 as "[a] continuous unobstructed path connecting
all accessible elements and spaces of a building or facility. Interior accessible routes may
include corridors, floors, ramps, elevators, lifts, and clear floor space at fixtures. Exterior
accessible routes may include parking access aisles, curb ramps, crosswalks at vehicular
ways, walks, ramps and lifts." Once again, the "walks" are tied to the site and do not fall
within the definition of "facility" outside the site.
Section 4.3.1 of the ADAAG provides: "All walks, halls, corridors, aisles, skywalks,
tunnels, and other spaces that are part of an accessible route shall comply with 4.3."
Section 4.3.3 entitled "Location" addresses the location of "accessible routes" and includes
the following: "(1) At least one accessible route within the boundarv of the site shall be
provided from public transportation stop, accessible parking, and accessible passenger
zone, and public streets or sidewalks to the accessible building entrance they serve."
All of these provisions are consistent with the conception of "facilities" as structures
within a site. It must be remembered that the focus is on access to "programs," not the
facilities. Making the "facilities" accessible is a means of making the "programs, services
and activities" offered within those "facilities" accessible, not a goal in and of itself. This
philosophy is set forth throughout the ADA regulations. Section 35.149 states that "no
qualified individual with a disability shall, because a public entity's facilities are inaccessible
to or unusable by individuals with disabilities, be excluded from participation in, or be
denied the benefits of the services, programs or activities of a public entity . . ." The
ADA Technical Assistance Manual makes the point in greater detail.
A public entity may not deny the benefits of its programs,
activities, and services to individuals with disabilities because
its facilities are inaccessible. A public entity's services.
programs. or activities. when viewed in their entirety. must be
readily accessible to and usable by individuals with disabilities.
This standard. known as "program accessibility." applies to all
existing facilities of a public entity. Public entities, however, are
not necessarily required to make each of their existing facilities
accessible.
(B) Sidewalks as a "Program"
According to the position most recently taken by the Department of Justice,
"providing, constructing, and maintaining public sidewalks is a 'service,' 'program' or
'activity"' under Title II of the ADA and the Rehabilitation Act. Thus, according to the
Department, a public entity provides a "service" by building public facilities such as
sidewalks, soccer fields, hiking trails, amphitheaters, parking lots, nature paths, boat slips
7
and public beaches. Building such things constitutes an "activity" and maintaining these
things is a government "service" or "program."
The Ninth Circuit Court of Appeals, in Zimmerman v. State Dept. of Justice, 170
F.3d 1169, 1174 (9th Cir. 1999) provided the following definition of "services, programs and
activities" in Title II:
A common understanding of the first clause shows that it
applies only to the "outputs" of a public agency, not to "inputs"
such as employment. (cites omitted) First, employment by a
public entity is not commonly thought of as a "service,
program, or activity of a public entity." Second, the "action"
words in the sentence presuppose that the public entity
provides an output that is generally available, and that an
individual seeks to participate in or receive the benefit of such
an output.
Consider, for example, how a Parks Department would answer
the question, "What are the services, programs, and activities
of the Parks Department?" It might answer, "We operate a
swimming pool; we lead nature walks; we maintain
playgrounds." It would not answer, "We buy lawnmowers and
hire people to operate them." The latter is a means to deliver
the services, programs, and activities of the hypothetical Parks
Department, but it is not itself a service, program, or activity of
the Parks Department.
There are three difficulties with the Department's argument: (1) "maintaining,
constructing or providing" something is not an "output" under the Ninth Circuit's definition;
(2) "maintaining, providing or constructing" something does not turn the thing maintained,
constructed or provided into a "program, service or activity"; and (3) implicit in the argument
is the notion that the Department can dictate what "programs, services or activities" a
public entity may maintain and the content of those argument. We discuss these points
seriatim.
Maintaining a sidewalk, building or piece of equipment is not something generally
offered to the public.9 Rather, it is a means to deliver the "programs, service or activities"
9 Notably, the Ninth Circuit did state in Zimmerman that "maintain[ing]
playgrounds" would constitute a service, program or activity of a public entity. However,
we do not believe the term was used to mean caring for something; rather, we
understand the word to be used to mean the keeping of something. See e.g. The
American Heritage Dictionary of the English Language (4th ed. 2000) which offers one
definition of "maintain" as "to keep in existence."
8
pertinent to the thing maintained. For example, consider a piece of municipal equipment
such as a police car. In order to ensure its efficient operation, it is maintained. It receives
oil changes and tune-ups. Doing so is a means of ensuring that when the vehicle is
necessary for a service call, it is ready to go. However, maintaining the car is not itself a
program or service offered to the public or something in which the public participates.
Another example would be the maintenance of a public building. This is something done
by public employees and in which the public does not participate. Cleaning, painting and
vacuuming the carpet in City Hall is not something the public participates in or which is
provided to the public. It is a means of providing or delivering the programs and services
offered in City Hall.
Constructing something is also not an "output" of a public entity. Again, this is not
something the general public participates in or which is offered to the general public.
Indeed, both constructing and maintaining public property, facilities or equipment is an
employment function and would fall directly into the Zimmerman case. The "facility"
constructed may or may not house a program or activity but constructing it is not something
offered to the general public.
The general public, including the disabled, undoubtedly benefit from the
maintenance and construction of public facilities and equipment. However, merely
benefitting from something is insufficient as a criteria for what constitutes a "program." If
a public benefit is the only criteria for something being a "program, service or activity,"
every public employee, building and piece of equipment is a "program" as virtually every
public employee, building and piece of equipment is presumably benefitting the public.
The second difficulty with the Department's argument is the notion, implicit in the
argument, that the thing maintained, constructed or provided becomes the "program."
Thus, according to the Department, because the City has a "program" of maintaining
sidewalks, the sidewalk is a program and must be made accessible. This leap in logic is
more clearly seen when we use the example of a public building such as city hall. The City
of Sacramento, like all cities, has individuals who maintain public buildings like city hall.
They clean, paint, patch, hammer in loose nails and occasionally change the carpet. But
this does not make City Hall a "program." Indeed, if it did, it would vitiate the careful
distinction made by the Department between existing facilities (for which the "programs"
and not the facility must be accessible) and new construction (where the facility must be
accessible). That is, if a city hall or other public building becomes a program merely
because it is maintained, then all public buildings that are maintained become programs
and the building itself, as opposed to the programs offered there, must be made
accessible. This, in effect, imposes a "new construction" standard on the public entity as
to "existing facilities."
Finally, implicit in the Department's argument is the notion that it can dictate what
programs a public entity must maintain and the content of those programs. The City of
Sacramento has a "sidewalk maintenance program." Virtually any city of any size no doubt
has a similar program. In Sacramento, citizens may call and report a defective sidewalk.
9
The sidewalk is inspected to determine if it is defective. "Defective" means that the
sidewalk constitutes a "safety hazard" due to displaced or broken concrete. If an inspector
determines the sidewalk is defective (i.e is a safety hazard" due to displaced concrete) then
the homeowner in most instances bears the burden of repair. That is the extent of the
City's program. The City does not remove utility or telephone poles or trees in the path of
travel, eradicate excessive cross slopes or widen sidewalks. However, under the
Department's argument, if a city cares for its sidewalks to any degree, even merely
sweeping and patching, it has an obligation of full accessibility. Under the ADA and
Rehabilitation Act, a public entity is to make its existing programs accessible not to create
new programs or enlarge existing programs. The Department's argument seems to require
just that.
Common sense and rules of statutory construction also fly in the face of contentions
that sidewalks are "programs" and therefore must be made accessible. The obligation
sought to be imposed is inarguably one that could potentially eat up the public works
budget of any city. Yet, despite the almost thirty year history of the Rehabilitation Act and
the more than ten year history of the ADA and the undisputed importance of sidewalks to
the disabled community, there is not a single case, until now, that has addressed the issue.
In addition, neither the statute nor the regulations even hint at such an obligation. In fact,
despite a specific reference to sidewalks in 28 C.F.R. §35.150 and 35.151, no such
obligation is imposed. Rather, those provisions, impose specific obligations only with
respect to curb ramps.
4. NEW CONSTRUCTION/ALTERATIONS
A. THE STATUTES AND REGULATIONS
Neither the ADA or the Rehabilitation Act explicitly imposes an accessibility
requirement on new construction or alteration. Title II of the ADA does impose such an
obligation in its regulations. Title 28 of the Code of Federal Regulations, §35.151, entitled
"New construction and alterations," provides in pertinent part:
(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 is
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
effects 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
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alteration was commenced after January 26, 1992.
Subsection (e) contains a particular requirement for curb ramps.
(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 and highways.
California Government Code §4450 et seq. sets forth a specific "new
construction/alteration" requirement with respect to the accessibility of sidewalks.
(a) It is the purpose of this chapter to ensure that all buildings,
structures, sidewalks, curbs, and related facilities, constructed
in this state by the use of state, county, or municipal funds, or
the funds of any political subdivision of the state shall be
accessible to and usable by persons with disabilities.
B. STANDARDS
(1) Federal Standards
There are currently no required federal standards for public rights-of-way. 10 The
ADAAG sets forth standards and guidelines for the new construction or alteration of
"facilities." While there are guidelines for "walkways" set forth within the ADAAG, these are
for walkways contained within "facilities." Section 14 of the ADAAG, entitled "public rights­
of-way" is specifically reserved. According to the Department of Justice, the Federal
Architectural and Transportation Barriers Board ("Access Board") published draft
accessibility guidelines specific to public entities in 1992 and issued an interim final rule in
1994. In 1994, the Department issued a notice of proposed rulemaking, announcing its
plan to adopt Title II guidelines when they became final. The Board issued a final Title II
rule in 1998, but the Department has not acted to adopt those guidelines because the
entire set of accessibility guidelines is currently undergoing a substantial revision by the
Access Board.
10 The absence of any standards not only supports the conclusion that sidewalks
are not programs (see supra), it also supports the conclusion that there is no new
construction or alteration obligation under federal law as to public rights of way. The
Department of Justice concedes the absence of standards for public rights of ways but
nevertheless argues that a public entity has a general obligation to maintain
"accessible" sidewalks.
11
(2) State Standards
The California Building Code, contained in Title 24 of the California Code of
regulations, currently includes standards for public rights of way. However, since
Government Code 4450 was promulgated in 1968, an issue has arisen as to when the
standards became operable and what standards were in effect at what time.
Section 4450 was enacted in 1968 and was at that time limited to public buildings
and facilities. In 1971, section 4450 extended the requirement that buildings and facilities
constructed with public funds be accessible to encompass "structures, sidewalks, curbs
and related facilities." Chapter 1301, Stats. 1971. There are no civil cases which have
construed the requirements of §4450 with respect to sidewalks. However, various
Attorney General's Opinions do shed some light on the subject.
In 1974, the Attorney General was asked to render an opinion concerning whether
accessibility requirements applied to all sidewalks or just those constructed next to public
buildings and facilities. The Attorney General, relying principally on the express language
of the statute, opined that the requirement applied to all sidewalks, irregardless of where
located. (57 Ops.Atty.Gen. 186 (1974))
In 1975, the Attorney General was asked to render an opinion as to whether a
pedestrian overcrossing constituted a "sidewalk" under the statute. (58 Ops.Atty.Gen. 512
(1975)) The Attorney General, once again relying almost solely on statutory language,
opined that a pedestrian overcrossing was indeed a "sidewalk" within the meaning of the
statute. Of interest is a footnote in the opinion concerning the appropriate standards to be
applied. Footnote 2 provides: "The State Architect has not yet promulgated the regulations
relating to structures, sidewalks or related facilities specifically relating to these access
requirements, as referred to in the above-quoted section 4450. Until such time that these
standards are promulgated by him, the applicable standards of the American Standards
Association (ASA) Specification A 117.1-1961 shall continue as the requisite standards for
providing the required access by the disabled." 11
In accordance with §4450, the State of California adopts each subsequent edition
of the Uniform Building Code as it is published and then provides state specific
11 The ASA standards, like the ADAAG, appear to apply only to walks within a
"site." The requirements for "walks" are contained within section 4, "Site development."
Section 4.2 includes the following requirements for walks: they should be at least 48
inches; have a gradient of not more than 5 percent; have a continuous common surface
not interrupted by steps or abrupt changes in level; when walks cross other walks,
driveways or parking lots, they should blend to a common level; and shall have level
platforms "at the top," if a door swings onto the platform or toward the walk. This
creates somewhat of an inconsistency between the Attorney General's opinion that
sidewalks, irregardless of where constructed, must be accessible.
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amendments to each adopted document. The resultant document is known as the
California Building Code ("CBC"). The CBC from the promulgation of §4450 until January
1, 1996, included the following language which qualifies the application of the standards
set forth in the CBC.
PURPOSE
Sec. 2-101. (a) To provide minimum standards to safeguard
life or limb, health, property, and public welfare and by
regulating and controlling the design, construction, quality of
materials, use and occupancy, location and maintenance of gll
buildings and structures within the scope of this Code.
(b) To assure that barrier free design is incorporated in all
buildings, facilities, site work and other developments to which
this Code applies to assure that they are accessible to, and
usable by, physically handicapped persons.
SCOPE
Sec. 2-102 (a) The provision of these building standards shall
apply to the construction, alteration, moving, demolition, repair
and use of any building or structure within the authority of any
state agency. These building standards shall not apply to work
located primarily in a public way, public utility towers and poles,
mechanical equipment not specifically regulated in these
building standards.
Thus, while the CBC, like the ADAAG, does contain provisions for walks and sidewalks,
the CBC does not require these provisions to extend to walks and sidewalks if they are
located primarily in the public way. The Matrix Adoption Tables of the CBC indicate that
this qualifying language was adopted by the Access Compliance Section of the Division
of the State Architect from first inclusion until at least January 1, 1996. There is thus a
fairly strong argument that, as a result of the application of the ASA standards to walks
located within a site and language within the California Building Code that standards set
forth there applied only to work not located within a public way, that until January 1, 1996,
there were no standards applicable to public rights of way.
5. ALTERATIONS UNDER §4450:
California Government Code §4450 requires that existing facilities be accessible
when they are "altered."12 Section 4456 provides:
12 As set forth supra, 28 C. F. R. 35.151(b) imposes an accessibility requirement
when "alterations" are made. However, unlike Government Code 4450 which
specifically includes sidewalks and curbs, 28 C. F. R. 35.151 applies generally only to
"facilities" (which does not include sidewalks or curbs). However, 35.151(e) does
13
After the effective date of this section, any building or facility
which would have been subject to this chapter but for the fact
it was constructed prior to November 13, 1968, shall comply
with the provisions of this chapter when alterations, structural
repairs or additions are made to such building or facility. This
requirement shall only apply to the area of specific alteration,
structural repair or addition and shall not be construed to mean
that the entire structure or facility is subject to this chapter.
A significant issue under §4456 is what constitutes an "alteration." Again, the
Attorney General provides some guidance. In 1978, the Attorney General was asked to
render an opinion as to whether a city library constructed in the 1930's was required to be
made accessible when the front entrance facilities were reconstructed. (61 Ops.Atty.Gen.
555 (1978)). The Attorney General relied on the dictionary definition of "alteration" as a
"change or modification in construction" and stated:
The facilities in question have been changed in a material manner, not
merely restored to their original condition. We are not concerned here with
simple maintenance. such as the patching of cracks in the steps. Moreover,
these front entrance facilities are not ornamental in nature but are essential
to the use of the library. Covering the facilities with concrete and increasing
the number of steps thus constitute construction modifications of essential
elements (with the addition of the side handrails) for the purpose of providing
safe access to the general public.
The Attorney General then addressed §4456's limit on the area of alteration. The
area of specific alteration to the library was the front entrance facilities. The Santa Cruz
City Attorney had investigated various possibilities for making the building accessible for
the handicapped and had ultimately requested bids for a handicapped ramp. The Attorney
General opined that unless an exception is granted pursuant to §4451, the specific area
altered must be made accessible.
The Attorney General also rendered an op1mon as to whether the seismic
strengthening of an unreinforced masonry building constituted an "alteration."
Unfortunately, the opinion does not provide specific facts as to the nature of the seismic
reinforcing or a discussion of the limitation set forth in §4456. Rather, it generally cites
previous Attorney General opinions and various definitions of "alteration" including that of
the ADA which defines "alteration" as "a change . . . that affects or could affect the
usability of the building or facility or any part thereof."
It seems that there may be some inconsistency between the Attorney General's
include a specific requirement for the inclusion of "curb ramps or other sloped areas"
when alterations are made to streets, roads or sidewalks.
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statements that where you restore a building or structure to its original condition that this
does not constitute an "alteration" whereas if you effect the usability of a building or
structure, it is an alteration. The potential inconsistency of these statements is seen in the
instance where a section of broken sidewalk is removed and replaced. Assuming the
sidewalk was broken or uplifted and you replace it with the same width and slope of
sidewalk (after trimming the roots or other obstacle), there is a strong argument that you
have restored the sidewalk to its original condition and therefore there is no alteration. On
the other hand, because you have fixed broken or displaced concrete, you have
undoubtedly improved the usability of that section of concrete. This latter argument finds
support in Kinney v. Yerusalim, 9 F.3d 1067 (3rd Cir. 1993). In that case, the Third Circuit
Court of Appeals held that resurfacing a street affects the usability of a street and therefore
constitutes an "alteration" under 38 C.F .R.35.151 (e) implicating an obligation to install curb
ramps.
Replacing portions of a sidewalk is arguably similar to resurfacing and does not
constitute ordinary maintenance. On the other hand, when the Kinney court spoke of the
nature of resurfacing it stated: "'[R]esurfacing' involves more than minor repairs or
maintenance. At a minimum, it requires the laying of a new asphalt bed spanning the
length and width of a city block. The work is substantial, with substantial effect." J..Q. at 1073.
Conversely, replacing one or two sections of a sidewalk does not "span the length and
width of a city block . . ."; rather, it is arguably insubstantial. This argument focuses on
the sidewalk as a whole with respect to each block. Under this thinking, replacing one or
two sections of sidewalk may not constitute an alteration.
Assuming for purposes of argument that replacing a section of concrete does
constitute an "alteration," the next question is what the obligations of a city are in replacing
the section. Under §4456, only that portion of the sidewalk that is altered need be made
accessible. If the sidewalk is forty-eight (48) inches or wider and can be replaced in kind,
there is no problem as the replacement section would comply with Title 24 regulations. A
difficulty arises when the extant sidewalk is out of compliance with current standards. For
example, if the sidewalk is twenty-four (24) inches and the City replaces a section, does
the City install another twenty-four (24) inch section or must it install a section that is forty­
eight (48) inches to comply with current standards? Without any authority, it would seem
that the common sense answer is that if it does not improve the overall path of travel that
the same width sidewalk should be installed. Installing one forty-eight (48) inch section in
the middle of a twenty-four (24) inch sidewalk would not only not improve the path of travel
but may constitute a tripping hazard. However, if an entire block of sidewalk (or a
substantial portion of the sidewalk) were removed such that the overall path of travel could
be improved, a compliant sidewalk should be installed.
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