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Under ADA, court orders curb ramps when streets are paved.

In a landmark decision, the United States District Court has mandated that the City of Philadelphia install curb ramps on all streets in which contracts for street resurfacing were let for bid after January 26, 1992. In Kinney v. Yerusalim, F.Supp (Civil No. 92-4101, E.D.Pa.1993) the Court rejected the municipality's claims that repaving of the city streets was not an action which triggered the accessibility requirements of ADA. The Court also rejected the city's argument that any access requirement was excused by the undue burden on the city.

This key case is being appealed to the Third Circuit Court of Appeals. Briefs will be filed this spring. Depending upon the decision by the Third Circuit, which should come down later this year, this case could well be appealed to the Supreme Court of the United States.

Kinney has profound implications for cities since the City of Philadelphia, like every other city, regularly resurfaces city streets. This case means that every time resurfacing occurs, a curb ramp or other slop surface must be installed at each affected intersection.

The District Court interpreted the regulations issued by the Department of Justice under Title II of ADA, particularly 28 CFR Section 35.151 (b)(1) which states "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."

The Court held that an alteration was a change to a structure that affects the usability of the building or facility. Resurfacing affected the usability of the street by making it easier and safer to drive upon and traverse, ways which were integral to the purpose of the street. Thus, this was an alternation subject to the ADA. The City's argument that resurfacing the street did not affect the curbs was rejected.

The City further claimed that if the alternation was subject to the ADA, then installing curb ramps would be an undue burden. The Court rejected the argument of undue burden since this applied to new construction and alterations. The District Court ruled that the undue burden defense is limited to instances of modifying existing programs and facilities, not where new construction or alternations are undertaken. The later, the Court noted, present an immediate opportunity to provide for accessibility.

The District Court reviewed the Department of Justice regulatory materials, which it observed contained only minimal analysis of the alterations provisions in Title II. Of more crucial import, the Court quoted the legislative history of the ADA that the forms of discrimination prohibited by Title II are to be identical to those prohibited in Titles I (Employment) and III (Public Accommodations and Commercial Facilities). ADA Title II should be read to "incorporate provisions of Titles I and III which are not inconsistent with the regulations implementing Section 504 of the Rehabilitation Act" (nondiscrimination by grantees) H.Rep. No. 485 Part III, 101st Cong. 2d. Sess.51(1990).

The issue of undue burden as a defense is the weaker part of the opinion. A road is a facility under the Department of Justice Title II ADA regulations (28 CFR Sec.35.104). When it is being modified (as opposed to being repainted). it is being altered. The modification of these facilities is the only way to achieve program accessibility. For roads and streets, some form of structural alternation is the only way to achieve program access.

Kinney is a key case. As the District Court observed, the "limited resources" of cities will bear a "heavy burden" in implementing the curb ramp requirements. The Court went on to take a swipe at Congress, observing that "Congress in enacting this type of legislation often fails to provide the means of financing the obligations it imposes."

Kinney is fuel for city leaders who are supporting President Clinton's economic stimulus package to rebuild American cities. Watch for the appellant decision.
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Title Annotation:Americans with Disabilities Act
Author:Goldman, Charles
Publication:Nation's Cities Weekly
Date:Apr 12, 1993
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