LAND USE U P D AT E Thinking Beyond Curb Cuts and Ramps: Planning and the ADA This is the tale of three communities confronting issues of sidewalk accessibility. These situations go to the core of accessibility planning, not simply legal disputes about curb cuts, ramps, and accessible sidewalks. Each community deals with what it means to be accessible and what is required to comply with our disability laws. As is typical, these difficulties are often exemplified by disputes involving everyday accessibility problems, such as those relating to sidewalks. Title II of the Americans with Disabilities Act (ADA) protects persons with disabilities from discrimination in services, programs, and activities provided by state and local government 42 U.S.C. §§ 12131-12165. Under Title II of the ADA, there is no obligation to build sidewalks, but if sidewalks are built, these sidewalks come within the domain of Title II. Specifically, sidewalks are considered a state and local government program, service, or activity. At the same time, sidewalks can also come within the ADA as facilities. And if federal funds are used to support the building of sidewalks, the state and local governments are also subject to Section 504 of the Rehabilitation Act. 29 U.S.C. § 749. Under both federal acts, all new sidewalks and alterations of existing sidewalks must be accessible Land Use Update Editor: Daniel R. Mandelker, Stamper Professor of Law Emeritus, Washington University School of Law, St. Louis, Missouri. Contributing Author: Robin Paul Malloy, E.I. White Chair and Distinguished Professor of Law, Syracuse University
to the maximum extent possible. Moreover, sidewalks must be maintained and kept in good and usable condition. Sidewalks are an essential part of the community infrastructure. They permit people to navigate easily and safely among and between the many venues where life is experienced – home, school, work, shopping, entertainment, worship, recreation, and political participation. Some people may believe that sidewalks are mundane, ordinary, and insignificant, but for others, sidewalks are vital pathways to community participation. Accessibility is an important factor to consider in the planning process when we recognize that nearly 20 percent of American families have a family member with a mobility impairment, and approximately 20-25 percent of the US population have some disability. And for communities with an aging population, the rates of disability are even higher. Tale One This past spring, the city of Sacramento, California, was the target of a class action lawsuit brought on behalf of people with disabilities. See Hood v. City and County of Sacramento, No. 2:2023 at 00101 (E.D. Cal. Feb. 7, 2023). The issue in the case positions the rights of people with disabilities to have safe and easy access to sidewalks against the rights of people experiencing homelessness to occupy public spaces that include sidewalks. The homeless population in places such as Sacramento poses several planning difficulties. Among current concerns is that many unhoused people occupy public sidewalks with tents and
makeshift shelters for themselves and their possessions. In doing so, the sidewalks are blocked, making it difficult or impossible for people in wheelchairs to navigate the community safely and easily. In the face of inaction on the part of the city and the county, disability-rights activists have sued the city for violating the ADA for failing to maintain accessible sidewalks by not removing the homeless people who are blocking them. Tale Two The Town of DeWitt, New York (a suburb of Syracuse) defines sidewalks as “snow shelves” to avoid an obligation to keep the sidewalks clear of snow in the winter. Town of DeWitt, N.Y. Code § 192-19.1. Snow removal is expensive, especially in a community that does not find it unusual to receive 150 inches of snow during winter. Maintaining sidewalks and keeping them clear of snow and ice for people with disabilities requires specially sized snow removal equipment and a budget for many hours of labor. In a planning move, the town added a provision to the local zoning code defining sidewalks as snow shelves, which are places where snow can be placed during the winter months. This designation allowed street plows to push the street snow onto sidewalks while simultaneously permitting sidewalks to remain inaccessible. When pressed on the subject of failing to maintain accessible ADA sidewalks, the town has responded by asserting that the ADA does not cover snow shelves. A sidewalk by any other name is still a sidewalk and, as such, is covered by the ADA.
Published in Probate & Property, Volume 37, No 5 © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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