Disabled rights fight takes to sidewalks

SACRAMENTO

It will be at least a year -- maybe longer -- before Sacramento officials know whether they are required to assure disabled residents access to the city's 2,200 miles of sidewalks.

U.S. District Judge Milton L. Schwartz recently decided there is no legal obligation, while acknowledging that his ruling "involves a controlling question of law, as to which there is substantial ground for difference of opinion." The judge certified his decision for immediate appeal to the 9th U.S. Circuit Court of Appeals, and stayed the class action lawsuit brought by disabled people against the city until the appeal is resolved.

"It's a huge issue," says Deputy City Attorney Gerald Hicks, "and I don't think either side wants to waste time going to trial with uncertainty on it."

Hicks argues there is no regulation and no law obligating cities to replace or retrofit sidewalks and no federal standard even for new construction. "There's no cases whatsoever that impose this obligation." A burden like that "would dominate if not destroy a city's public works budget," he said in court papers.

But plaintiffs' attorney Melissa Kasnitz says, "The real world result of the city's argument would be that curb ramps would be provided around Sacramento, but no effort would be made to remove barriers along inaccessible sidewalks.

"The consequence of this is that the city would provide curb cuts to nowhere."

Schwartz signed off last month on an injunction -- agreed to by both sides -- that requires the city to install 1,500 curb ramps every year until they are at all locations where sidewalks intersect streets.

The Sacramento City Council approved a plan early this year to spend $4.5 million annually installing or retrofitting more than 50,000 ramps over the next several decades. The plan's total cost is estimated at $154 million.

Curb ramps are slopes from sidewalk to street level, generally at corners, and are specifically mandated by U.S. Department of Justice regulations implementing the Americans With Disabilities Act.

But Schwartz and city attorneys agree there is no provision as to a city's network of sidewalks.

If the circuit court agrees to hear the matter, it will take at least a year for briefing and argument and for an opinion to come down. And, since it is an "issue of first impression in the nation" -- meaning the courts have not yet grappled with the question -- the loser might seek a review by the U.S. Supreme Court.

Noting a dearth of statutory guidance and case law, Schwartz remarked at a Feb. 16 hearing that the ADA is no help at all.

"The statute in its wisdom and its brilliance talks about (a program or a service) and they mean different things to different people, and no dictionary is going to do it," the judge said.

"The right answer is where the highest court to hear the case makes a ruling.

"I can't believe that I would ever come to the point of saying sidewalks can fit the definition of a service, facility, or program."

In that event, Kasnitz says, her clients want to know, "If ensuring safe sidewalks for this vulnerable population isn't the city's job, whose job is it?

"No reasonable person could dispute that the provision of public sidewalks is a program, service or activity of the city of Sacramento and, as such, is subject to the program access requirements of the ADA."

Those requirements dictate that each public service or program be "readily accessible to and usable by individuals with disabilities." Kasnitz gives these examples of barriers that she says force disabled people into the street:

• Abrupt changes in sidewalk level caused by tree roots, which present a tripping hazard to people with vision impairments and an obstacle for people who use wheelchairs, walkers or canes.
• Narrow pathways around poles, benches, trees, sign posts or other obstructions that prevent wheelchair users from passing.
• Severe cross slopes impeding access for wheelchair and walker users, such as where driveways intersect sidewalks.
• Broken-up concrete and protruding objects such as guy wires that support poles and that a blind person cannot detect.

Imagine the financial burden of removing these barriers in places like New York, Philadelphia and Boston, where infrastructure dates from the 19th century, Hicks argues.

In Sacramento, he says, much of the infrastructure dates from the Gold Rush era more than 150 years ago. "Imposing such an obligation is so onerous and such a serious intrusion into the discretionary expenditure of public municipal funds that it simply cannot have been the intent of either Congress or the Department of Justice," he says.

But plaintiffs' attorney Shawna Parks counters that her clients "accept that there will be some barriers that cannot be remedied due to the cost," and that it may take years "to fully address all of the relatively inexpensive fixes.

"What plaintiffs cannot accept," Parks said, "and what the court should reject, is the city's position that it never has to do anything."