ADA Notice to Those Who Build in our Region
Construction of new buildings and the renovation of existing structures continue in the region — a very good thing given current concerns over the economy. Unfortunately, many of these are failing to provide a pedestrian access route from the public sidewalk as is required by the Americans with Disabilities Act of 1990.
While I don’t expect every building owner to upgrade existing sites to include an access route I do expect new and substantially rehabbed facilities to comply. Sadly building codes don’t always require the same things as the ADA so while a project might fully comply with the building code that doesn’t exempt it from needing to comply with the ADA.
I’ve written before about finished projects not complying with the access route requirement — Lowe’s at Loughborough Commons and several Starbuck’s locations, for example. I’ve also written about locations that do comply — such as the new Arby’s on Lindell across the street from the new McDonald’s under construction. It frustrates me that municipal and county officials fail to include a pedestrian access requirement in their codes and thus don’t enforce it. In the city and other areas where you have pedestrians local officials should have the local power to require that places connect to the existing sidewalk network
So it occurred to me that nothing prevents me from notifying companies of their need to comply as I see projects being built. I’m thinking I draft a standard letter that I can send out via certified mail giving them notice of the need to provide an access route. Of course I cannot assume they are not going to comply.
Here is a first draft:
Dear sir/madam,
I see that you are constructing a new [insert name] in the City of [city name]. Please be advised that while your plans fully comply with the locally adopted building code they may not be fully compliant with a provision in the 1990 American’s Americans With Disabilities Act that requires a pedestrian access route from a public sidewalk to the accessible entrance.
The relevant section to which I am referring is 4.3 of the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG) which can be found online at access-board.gov:
“(1) At least one accessible route within the boundary of the site shall be provided from public transportation stops, accessible parking, and accessible passenger loading zones, and public streets or sidewalks to the accessible building entrance they serve. The accessible route shall, to the maximum extent feasible, coincide with the route for the general public.
(2) At least one accessible route shall connect accessible buildings, facilities, elements, and spaces that are on the same site.“
Hopefully your Architect/Engineer has already included such an access route in your site plan. If not you should contact them at once to verify they are willing to assume the liability for non-compliance.
The ADA is Federal Civil Rights legislation. Failure to comply can result in an investigation from the U.S. Department of Justice and/or private legal action.
An access route not only helps the disabled but anyone that may be arriving at this location on foot. I understand this may differ from how you’ve done things in the past. However, the ADA has been the law for nearly two decades now.
Thank you for your attention to this matter. If you have any questions please feel free to contact me.
Regards,
Steven L. Patterson
UrbanReviewSTL.com
Again the above is just a first draft. Hopefully I can get a few places that didn’t have an access route planned to alter their plans to include one prior to the completion of the project. If not, the letter will help in any future litigation.
I’m determined to make our region more walkable. Even if that means we drive our cars to the strip mall but choose to walk to the out parcel once we are there.
Ahh, wordsmithing . . . “your plans fully comply with the locally adopted building code” – just because a pemit has been issued does not assure “full” compliance. Most building departments stamp plans associated with permits with a disclaimer similar to “All work is subject to approval by the building inspector before occupancy”.
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I’d change the wording as follows:
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It appears that [insert name] has recently received building permits from the [city or county name] to construct a new [insert name] at [insert address]. Please be advised that your plans may not fully comply with a basic provision in the 1990 American’s With Disabilities Act that requires all new commercial construction provide a pedestrian access route from the existing public sidewalk to the new accessible entrance.
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The relevant section is 4.3 of the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG) which can be found online at access-board.gov:
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Hopefully, your Architect/Engineer has already included such an access route in your site plan. If not, you should contact them immediately, since it places significant liability for non-compliance on both the owner and the designer of record.
I’m not a lawyer, but this draft might be a little more effective if you start with the regulation and talk about how it eases accessibility for both employees and potential customers of all mobility levels. There’s a strong, innate economic motive for compliance – good employees can’t do good work and good customers can’t spend good money if they can’t get in – that is much more immediate for business owners than the specter of regulatory problems.
I love the idea. It is so frustrating to discover shortcomings in these projects only after it is too late. I agree with Jeem that starting with the commonsense reasons to comply with the act. Also, “American’s with Disabilities” shouldn’t have an apostrophe.
As an alternative to Jim’s suggestion, an option would be: “while your plans may fully comply with…”
I love the Anna caught the superfluous apostrophe. It’s a pet peeve. Jim’s suggestions would address my concerns. Jeem’s notes are a matter of style.
On another note. The post brings up a strange disconnect between what is required in local ordinance and federal legislation. Why haven’t local governments added the ADA requirements into their own building codes? It seems there is enough detailed language available that it should be a simple copy/paste exercise for an alderman or city staffer. Maybe we could accomplish the task by referendum? Isn’t there a method by which we could get a simple measure passed in the city and/or county to force insertion of ADA requirements into local code?
Model building codes, which nearly everyone uses these days, are the classic case of design by committee. Since they, to a point, have to be “one size fits allâ€, there are many issues that get “negotiated†to a point where nobody is happy, i.e., you reach a compromise. These site-access issues are classic cases of trying to please everyone, including many rural areas, where sidewalks simply don’t exist and larger industrial complexes where they simply wouldn’t be used.
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The ADA is, by design, civil rights legislation. The ADAAG and its requirement to provide accessibility are only one part of the larger law. In some ways it’s good, since it’s probably impossible to precisely define every potential disability in legal terms, and in some ways it’s not, as these ongoing cases of non-compliance illustrate.
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The other half of the equation is that model codes are simply that, a good starting point, where the wheel isn’t constantly being reinvented with minor modifications. And while most jurisdictions adopt the model codes with few, if any, amendments, many jurisdictions DO add amendments to address local conditions. Since St. Louis and many of its neighboring suburban cities already require that public sidewalks be provided or maintained along the property line, there’s absolutely no reason (other than political inertia and/or the desires of local building officials to not have to be responsible for another issue) that the exceptions contained in Chapter 11 of the International Building Code (IBC) can’t be removed in the ordinance that enacts the latest model code every 3 years or so. All it takes is a) educating one or more alderman and/or city council member about why it’s important*, and b) prodding them to make sure the amendments are a part of the appropriate legislation (because most building officials won’t).
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*It’s actually important for two reasons, one, the obvious one, to improve accessibility, and b) to protect owners from themselves – while they will likely be legal at the local level, it doesn’t exempt them from compliance at the federal level.
the building code of the jurisdiciton is the prevailing law on building construction, including accessibility. the ADA is a civil rights law, not a building code and its standards are guidelines, not codes. in fact, the use of the term ‘ada’ to refer to facilities and building elements like ramps, restrooms, and parking spaces is a misnomer. it is more accurate to say ‘access ramp’ ‘accessible parking’ ‘accessible restroom’ etc.
as a code official, i am constantly pointing this out to architects and engineers, but it doesn’t seem to be sinking in.
your letter should state that the ada requires access and that the issuance of a building permit is not construed as evidence of full compliance with the code. plan examiners do not scrutinize every aspect of a project to ensure compliance to every provision of the code; that’s usually impossible. but accessibility is usually one of the main points of review. also, the public rights-of-way are reviewed separately from private property.
“the building code of the jurisdiciton[sic] is the prevailing law on building construction, including accessibility.”
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Your statement makes it sound as if local building codes supersede the requirements of the ADA. This is not the case. Many federal statues and even federal agency rulings based on interpreting federal statutes override local law (such as FCC findings on satellite dish placement).
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Jim makes a point that there are model codes which incorporate ADA access requirements. Why shouldn’t we require our local governments to amend the local ordinances regularly to address accessibility and safety concerns. A simple requirement that the local code enforcement staff (county or city) make recommendations of changes to the building codes to conform with ADA requirements to the legislative body every three years or so. If there are model codes to use from trusted authorities, it should be a simple matter requiring minimal man-hours to research and provide the needed report. If this work has been done (I am hearing otherwise on this blog) then enforcement is the issue and that’s a whole other topic.
Bad Tim – I’m glad (and not surprised) that you’re “constantly pointing this out to architects and engineers”. And you’re right, the ADAAG are guidelines, not “law”, but by complying with them the assumption is that you have complied with the ADA, while not complying with them creates a much-harder-to-defend position should one end up in court. Unfortunately, too many owners are willing to “roll the dice” when it comes to full compliance, gambling that a “small” issue (in their eyes) won’t be a big enough issue for someone to go to the effort of taking them to court, or that if they do, they’ll just spend the money when they “have to”. It’s a simple, bottom-line calculation, driven be enforcement, or, more precisely, the lack thereof.
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Having worked in the past with code officials to both propose language changes and to review model codes before their adoption, I can attest it’s not the most sexy thing to be doing. And as the model codes have merged and become more uniform, there’s been an effort by ICC, the AIA and (I assume) individual code officials to minimize the number of local amendments. As an architect, the uniformity makes my life easier – except for states with statewide codes, most amendments end up being separate documents that aren’t cross-referenced in the main code, which creates a situation where “gotcha” happens way too often, even for local designers. The problem, as this issue illustrates, is that “fixing” one issue creates a repeating problem somewhere else – the law of unintended consequences. In a perfect world, the current exceptions would be more-narrowly defined (are there adjacent public sidewalks? what are the distances to be connected? how steep are the grades? etc., etc.) if not eliminated. But for now, we’re stuck with a situation where the model code is at cross purposes with the ADA in urban locations.
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Another good (bad?) example is the new (year old) credit union on Big Bend south of 40/64. There’s a public sidewalk, two curb cuts and the building is proabably within 30′ of the sidewalk, yet there is no on-site sidewalk from the public sidewalk to the front door. Yes, there is a sidewalk at the front door, complete with a ramp to serve the accessible parking spaces, so they’ve met the letter of the building code, but they are in blatant non-compliance with both the spirit of the ADA and the requirements contained in the ADAAG. Will somebody sue them? Only time will tell. In the meatime, they’ve “saved” less than $5000 (what it would’ve cost to do it right while construction was happening) and they’ve made it less safe for any customers who don’t arrive by car.
Excellent points JZ and your experiences are much more but confirm mine. Small communities neither have the talent or budgets to deal appropriately with these codes and gamble-play an “I dare you” game. See Steve’s entry on 8-15-07 which confirms how the same community repeatedly allows new structures to circumvent the spirit and intent of code requirements. As long as there is a driveway for motorized vehicles, who needs a sidewalk?
equals 42, the ADA is not a regulatory statute.
the international building code is the regulatory ordinance in the case of st louis city and county, and its requirements are drawn directly from the icc/ansi a117 standard for accessibility [which steve refers to as the guidelines]. there’s no need to tell the various jurisdictions to update their codes because it’s all there already.
most of the problems cited are indeed poblems of enforcement, not regulation. the 2003 IBC requires an accessible route to the public right-of-way. a plan examiner isn’t always going to notice if a site has an accessible route, there are usually many other issues that need to be resolved, and many projects to review at once. the plan examiner’s first concern is how to get people to safety in the event of an emergency. a lot of things go unnoticed, and sidewalks are probably the most common of those; not just by plan examiners, but by designers and clients as well. it’s a shame, but the car dominates our planning to such an extent that all other access is secondary.
Good for you for taking even more initiative. It’s astounding how much new development there actually is without complying with ADA accessibility requirements – and even more so that it does not seem to be enforced – at least in St. Louis area – without the hard-hitting determination of accessibility champions like yourself. Good luck with your letter and hopefully it will mean you’ll have less development-accessibility problems to write about it in the future, even though they are quite enjoyable to read 🙂
I constructed two condo buildings in Clayton and both have direct access to the front lobby with an elevator. Fully wheel chair accessable, yet I just received notice of a lawsuit against me for other reasons on non compliance. Does this make sense?
Yes, doug. The ADA requires access to the entrance, accessible parking (if parking is provided) and a percentage of accessible units (under the Fair Housing Act). The ADAAG is available online, and it covers many types of disabilities, not just mobility. If permanent signage (unit numbers, for instance) does not have raised numerals and letters and is not installed at the correct heights and locations, you can be in non-compliance (just one of many examples). If you discriminate against potential buyers because of their disabilities, you’re likely in violation. The lawsuit should specify where you’re allegedly not complying. The goal of the ADA is compliance, and if modifications are completed, or at least started, before trial, it will show a good faith effort to resolve the issue. And, you should talk to your architect – they should know what’s required, and if something was missed, should be willing to help resolve the issue.