CASEYFRANK

THE ADA AND PRIVATELY OWNED HISTORIC FACILITIES

Colorado possesses many historic facilities which are a cherished part of our cultural heritage.[1] At the same time, Colorado aspires to make all of its facilities accessible to people protected by the Americans with Disabilities Act (the ADA). Disabled people want to be woven more fully into the fabric of society. Preservationists want to resist the impairment of our old treasures. How are these competing values reconciled?

Although the ADA prohibits discrimination against persons with disabilities, historic facilities are accorded special status by Title III of the ADA,[2] in order to balance the competing values of disabled access and historic preservation. Historic facilities are not completely exempt from the ADA as are private residences, religious entities and private clubs.[3] The presumption is that historic facilities will normally comply with the ADA just like others must.[4] However, if a proposed change is required under the general - or global - principles of the ADA, but it would "threaten or destroy the historic significance" of a facility, the owner, tenant or manager can seek alternative, less onerous solutions.[5] To understand how the special historic provisions of the ADA are applied, we must first review the global context in which they are found, because the historic provisions are only invoked subsequent to the application of the global principles.[6] That analysis of the status of the facility under the ADA, the pertinent global requirements under the ADA and the applicable global qualifications will yield a set of preliminary, proposed actions. Only then can those proposed actions be tested against the special consideration which the ADA grants historic facilities.

What type of Facility is at Issue:

A Commercial Facility or a Place of Public Accommodation?

The ADA recognizes two types of facilities. Commercial facilities such as factories, or similar places, affect commerce but generally have no public traffic.[7] Places of public accommodation are those where the public can be expected to visit, such as hotels or restaurants.[8] As discussed next, commercial facilities must meet ADA standards for new construction[9] and alterations,[10] but are exempt from the obligation to retrofit an existing facility.[11] Places of public accommodation must also meet ADA standards for new construction and alterations as well as some further requirements for existing facilities.[12] Because of the different requirements applicable to these two categories, it is obviously essential to know which one is at issue. Depending on the result of this determination, action may or may not be required.

What type of Activity is Involved:

New Construction, Alteration or an Existing Facility?

New construction must be readily accessible and usable in strict compliance with the ADA Architectural Guidelines (ADAAG),[13] unless structurally impracticable due to unchangeable characteristics of the site.[14] When could construction be new and be historic at the same time? Perhaps only when a historic facility was being rebuilt. The center of old Warsaw, Poland comes to mind. It was rebuilt after World War II, using drawings made centuries earlier by an Italian traveler. In the U.S., such rebuilding might be expected to comply with the ADA, unless doing so would threaten its historic significance.

For alterations, compliance with ADAAG must be to the maximum extent feasible,[15] a standard which itself is the subject of much litigation. Similarly, alterations in a historic facility would also be expected to comply with the ADA, unless doing so would threaten its historic significance.

Existing facilities raise some of the most contentious issues in ADA enforcement. If your client owns a landmark, and is not doing work on it, does the ADA require retrofitting? The answer is a limited, qualified yes, unless doing so would threaten its historic significance.

Each activity places the facility owner, tenant or manager in a different constellation of ADA regulations. Navigating these successfully depends upon a clear view of one's location in the ADA heavens. Positioning a project accurately leads inescapably to the applicable ADA requirements, which may ultimately impact an historic facility.

The Remedies Available for Existing Facilities:

Barrier Removal, Auxiliary Aids or Policy Modification

Potentially, the regulations and qualifications applicable to existing facilities are particularly relevant for historic facilities. Historic facilities are by nature not so amenable to be altered or rebuilt as they are to be maintained and preserved. ADA compliance for existing facilities takes three forms, each with their own demands and limitations.

Barrier removal in existing buildings is required only for places of public accommodation. Architectural and Communication barriers must be removed if that is readily achievable.[16] Barrier removal should meet but doesn't have to exceed the standards found in ADAAG.[17] If removal is not readily achievable, alternative methods are required if they are readily achievable.[18]

Auxiliary aids constitute non-architectural problem solving. It also only applies to places of public accommodation. Auxiliary aids and services to ensure equal access must be provided unless doing so would fundamentally alter the goods or services provided or would constitute an undue burden.[19]

Policy modifications are required for places of public accommodation to enable enjoyment of services, if reasonable,[20] unless that would fundamentally alter the goods or services provided.[21] These three avenues of compliance are applicable to all facilities - including historic ones - with important qualifications on the demands made by the ADA, as discussed next.

Do Any Global Qualifications Apply:

Not Readily Achievable, Undue Burden, or Fundamental Alteration of Goods or Services?

As do the most provisions of the ADA, these global qualifications apply to the entity - the person or business, not to the physical facility. If a facility owner, tenant or manager can demonstrate the facts which comprises the qualification, they may be relieved from full compliance with ADAAG.

Not being readily achievable is a qualification to barrier removal. An action is not readily achievable if it requires much difficulty or expense, as determined by an analysis of several factors.[22]

An undue burden qualification to compliance with a demand for auxiliary aids under the ADA is available for existing facilities.[23] It is determined by analyzing the same factors as in determining whether a barrier removal would be readily achievable, but to a more demanding degree.[24]

That an action would fundamentally alter the nature of goods or services offered is a qualification to a demand for policy modification.[25] Methods of compliance, and these related qualifications, must first be analyzed and applied without regard for to the special historic nature of a facility. Then the proposed action - if any - can be scrutinized for its effect on the historicity of the facility.

Would The Proposed Modification - "Threaten Or Destroy The Historic Significance" Of A Landmark?

Unlike the global ADA principles - which apply to the party (the owner, tenant or manager of the facility) - here the place controls. The special provisions of the ADA pertaining to historic facilities are measured against the physical facility.

The special provisions only apply to a facility which is on the National Register, or which is an explicitly designated state or local landmark.[26] If the facility in question is lovely and old, but has never been formally designated as a landmark, the special provisions are inapplicable. The threshold question then becomes whether the proposed modification would "threaten or destroy the historic significance of the building or facility."[27] If not, you must comply with ADAAG like everyone else.[28] However, if the proposed modification would be potentially damaging, then there special procedures to follow.

How Are Approvals Obtained For Use Of the Special ADA Provisions?

The determination of a threat to the landmark is not a private one. You must initiate a consultation with the appropriate authority and present your case to them. The type of landmark involved makes a difference:

** If the facility is on the National Register, then approval must be obtained for any exemption from the normal ADA provisions from both the responsible Federal Agency, as well as the Advisory Council on Historic Preservation, or the State Historic Preservation Officer, known as the SHPO.[29]

** If the facility is a state or local landmark, then approval must be obtained from the SHPO alone.[30]

The SHPO can designate the decision making authority to a Certified Local Government that meets State and Federal standards.[31] Denver is a certified program, and the SHPO has informally delegated the approval process in Denver to the Commission for People with Disabilities.[32] Although the U.S. Department of Justice apparently favors a more formal delegation,[33] the present approval path in Denver is through the Commission. In other communities, the SHPO may still wield authority directly. Actually, Denver applies Chapter 64 of its own Building Code, not the ADA. Since the Denver Code is stricter than the ADA, the ADA is encompassed by the Code.

This delegation of authority is different from formal local-code Certification under the ADA, whereby the U.S. Attorney General certifies that a local code meets or exceeds all ADA Title III requirements. This would provide permit seekers with a rebuttable evidence that they have complied with the ADA if they have complied with the local code.[34] While no state has been certified as of yet, four states and New York City have already requested certification.[35]

As a practical matter, the burden is on the facility owner, tenant or manager to prove the threat to the historic facility. It is a narrowly interpreted exception to the global requirements of the ADA. Expect to submit photos, drawings (including elevations), a written explanation for the threat to the facility justifying non-compliance, and demonstrate prior consultation with disabled groups, accessibility officials and historic officials.

Tax Incentives which are available for the substantial rehabilitation of historic facilities on the National Register[36] can probably be obtained for work required for ADA Compliance. Requests are made through the SHPO and certifications are issued by the National Park Service.

What Are The Special ADA Provisions For Historic Facilities?

If you can convince the appropriate authority that the modifications which are being demanded are indeed a threat to the historic fabric of your facility, then it will be exempted from full compliance with ADAAG. However, this does not confer a blanket exemption from the ADA. If it is feasible, you must still meet ADAAG minimum requirements.[37] These standards are less demanding than full ADA compliance, but are still significant. In brief, they include:

* At least one accessible route to the facility's entrance;

* At least one accessible public entrance, or one accessible separate entrance;

* One unisex toilet (if they are otherwise available);

* Access to entrance-level public spaces;

* Access to all levels if practical;

* Signage at seated level, not higher.

However, if compliance with even these minimum ADAAG standards is not feasible,[38] then you must at the very least use alternative remedies, such as changed policies and auxiliary aids.[39] These include, for example:

* Home delivery service by an inaccessible store;

* Rotating all movies from an inaccessible multiplex cinema into an accessible one;

* Retrieval of inaccessible merchandise by clerks;

* Partial accessibility in a store or restaurant.

For example, if it was not feasible to make the Molly Brown House in Denver physically accessible, the House could make a video tour of the interior and make it available for home viewing by those people who were excluded from the actual facility.

Conclusion

The intersection between the drive to provide disabled access and the drive to preserve landmarks has no clear traffic signals. Consequently, disputes are inevitable. One of the most publicized controversies to date involved the Empire State Building in New York, one of the most famous landmarks in the U.S. Its owners recently entered into a $1.8 million settlement agreement with the U.S. Department of Justice, which included periscopes on the 102nd floor observation deck for people in wheelchairs, with handles in the shape of King Kong.[40] The ADA attempts to ensure access to historic facilities, while simultaneously honoring our architectural heritage. As a result, both passionate advocates for the disabled and for preservation may feel dissatisfied. Such is the art of compromise in our pluralistic society.