Misrepresenting the ADA

The draft EA misrepresents the ADA requirements.  It is correct that ADA must be met to utilize federal funds, however  the minimum width for ADA, by law, is 36”.  The Draft EA states that a 36” wide trail is not accessible per ADA.  That is untrue.

The draft EA,  on III-2, states that “the minimum path width to be considered ADA compliant is 8 feet.” This is simply false.  It may be someone’s interpretation of ADA - but it is not is required for ADA compliance.   This false statement undermines the entire consideration of alternatives which follow.   Nowhere in the draft EA is the inclusion of ADA statute which supports its statement.  That is because there is none.

The Project Manager and Consultant have continually misrepresented ADA to the public, to the Town Board, and in the draft EA.  The Sponsor, Consultant and others have continually made claims regarding accessibility that are untrue and misleading.  This ongoing pattern of misrepresentation of ADA requirements has unduly influenced the Town Board, the Conservation Board, and many members of the public.  It has undermined the fair  development of the Environmental Assessment.

Our understanding of ADA is based on research that has included the following phone calls:

Lisa McPhee, Attorney-Advisor, Office of Chief Counsel, FHWA.  She is the contact person for ADA legal issues.  Several phone calls, through May 5, 2010:  

Ms. McPhee explained that there is no ADA requirement greater than 36”.  Currently, it is the only standard.   Ms. McPhee explained the Department of Justice sets the standard, and the standard set by law by DOJ is 36” width.   Ms. McPhee added that  ADA does not explicitly address shared-use paths or trails.  It is specifically related to buildings.   Ms. McPhee reiterated that flexibility and discretion are important.

Christopher Douwes, Coordinator for TEP Projects , FHWA.  Phone call January 28, 2010.  Mr. Douwes states that the trail width issue is “definitely not ADA”.  Mr. Douwes said that the Sponsor is wrong to be claiming that ADA requires a wider trail than 36”.  Mr. Douwes also stated that if the trail gets little enough use so safety is not an issue it is a recreational trail, not  a transportation project.  This is a recreational trail. 

Bill Botten, Accessibility Specialist, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board. Phone call January 28, 2010.   He stated that it is his understanding that there is nothing in ADA that requires a width greater than 36", but he suggested I confirm it directly with the Department of Justice, and gave me an 800 number to call.

DOJ 800 line.  The person I spoke to confirmed that 36” is the minimum that necessary to meet ADA requirements.

Yet the draft EA invokes ADA to justify its preferred alternative, and uses it to reject the 3’ width alternative.    The Sponsor has done so throughout the project.    It is a smokescreen.  A 3’ width meets requirements for accessibility and ADA.  

In this paper we will not discuss each one of the places that the draft EA wrongly invokes ADA to justify its alternative.   Simply stated,  the statements throughout the entire draft EA regarding ADA are wrong.   Furthermore, they have been presented incorrectly throughout the process of the development of the Environmental Assessment.  The public and the Town Board have been deceived.

The continual and ongoing dissemination of this incorrect information has been terribly harmful to the project.  The public and Town Officials have not been given the proper information about ADA or accessibility.  The Town Board has been unwilling to even consider requesting “exceptions” from standard “guidance” for shared use paths, because the project Manager and consultant have continually stated them a 3’ path doesn’t meet ADA.  If ADA is a ‘deal-killer’, all minds are closed.  The Town Board accepted the Design Team’s inaccurate claims about ADA requirements.

As Ms. McPhee has stated, there is discretion and flexibility.  By refusing to acknowledge this discretion,  and work with the Coalition to achieve a compromise that protects the sensitive environmental area, the Sponsor has misrepresented a critically important issue to the public.  The entire Environmental Assessment process has been undermined.

We note that in the first Auburn Trail project, PIN 4760.17, the approved Design Report states that only 90% of the trail meets ADA.  The section that is not ADA compliant includes a 29% grade.  We provide this example to illustrate that there is discretion, and that discretion has been used by the Town in the first Auburn Trail project using the same federal funding requirements.

As the draft EA provides no substantiation for its claims about ADA, we are asking the Sponsor to provide the written statute to support its claim that “the minimum path width to be considered ADA compliant is 8 feet.”  We are asking for clear and concise language directly from ADA - not for an individual’s interpretation or opinion.