In the United States, over the last decade, sixty thousand pedestrians died under the wheels of an automobile. One million pedestrians were injured.

Join us for the next half hour as we take a look at perils for pedestrians.

Perils for pedestrians

This episode you see have the Americans with disability acts appraised to sidewalk,s and we travel to California to talk to a lawyer and painter from a key court case. Stay tuned.

We are in Washington DC talking with Laura Stevo who is the Research Coordinator of the US Access Board.

What is the Access Board?

You could think of the Access Board as the federal government specialist in accessibility. We have the responsibility to develop guidelines under all range of laws that require accessibility from the ADA which governs buildings and facilities to information technology to voting machines to telecommunications. Our work is generally for another agency that has rule making authority.

And when did federal law first get involved in accessibility of the public right of way, sidewalks and so on?

Actually, quite a time ago in 1973 a law called the Rehabilitation Act required that programs that were funded with federal money provide a certain level of accessibility. It was a very basic level of accessibility. It’s certainly gotten better since then but the US Dept of Transportation’s 504. The Rehab Act is often shortened as 504 standard required programs and things of that sort along public rights of way.

And you mentioned the ADA. What does it stand for what does it pass, and what does it do?

Americans with Disabilities Act which came along in 1990 and basically took two laws that had applied largely to the federal government and to facilities that had federal funding often through the states and applied it more broadly to virtually every kind of facility and entity, except for religious organizations and private clubs and to a certain extent housing which was already covered by another law.

So how does the ADA apply to the public right of ways sidewalk and so forth?

Well, the ADA has 5 titles and two of them have obligation for entities that do a fair amount of design and construction. One is Title II which covers state & local governments & the other is Title III which covers private sector facilities.

It is Title II that will generally govern public right of way, design & construction but as we all know very often it is Title III entities developers private sector providers who will actually design and construct the pedestrian facilities but having to meet them the Title II requirements.

And how does the law get translated into like its built. People don’t go and consult law generals about the run outs and sidewalks

No, I don’t think that’s one of the issues that effects implementation is that the work of our agency and then of the agencies that adopt our guidelines are printed first in the federal register which is not a document that everyone reads. When a law is passed congress assigns responsibility for implementing regulations to a federal agency that has an interest or responsibility in that area. In the case of Title II of the ADA implementing regulations were assigned to the US Department of Justice and in 1991 they produced implementing regulations. Then those implementing regulations will often include, and in this case they did, a reference to or an actual standard against which you can measure the requirements that the implementing regulations has. In the case of Title II it says that new construction and alterations to the maximum extent feasible shall be accessible to, and useful by people with disabilities and then the guidelines that we develop become the standards that measure that accessibility and in a way you could think of them all so as a safe harbor for practitioners. So if you follows the access board guidelines you could be deemed to be in compliance with the requirements of the implementing regulations.

What work goes into creating a set of guidelines for something like the public right of way, where you can't have one blueprint that's going to fit every intersection in the country?

That was something with which we wrestled with for a long time. We of course started with basic ADA accessibility guidelines which were themselves based upon an earlier standard - the Uniform Federal Accessibility Standard and all of those things were based upon research that was done some for HUD, some for other agencies in the 60's and 70's. We did our own research and we had our advisory committee that helped us with recommendations they represented the stakeholders both public & private, and we had in the end about 55 members of what was called the Pro Act Public Rights of Way Access Advisory Committee. and we are now at the draft stage and as soon as we get finished with our cost analysis, WAI would be ready to publish what is called the notice of proposed road making.

How difficult is it to measure the cost vs. the benefits of making a corner usable by someone in a wheelchair?

It’s extremely difficult. It’s quite easy to monetize a concrete or even construction labor, but it is very difficult to assign a value to the ability to live independently which is really what it’s all about.

And then what applies to new construction and what applies to fixing something that is already there that was built before you knew better?

This is a perfect opportunity to site the flexibility of the ADA. There are 3 levels of expectations if you will under the ADA.

One is for new construction. When you are starting from scratch u can control every feature. You haven’t designed a right of way yet and so all of the provisions and all of the improvements that you design and construct can be perfectly a standard.

In an alteration, also governed by the standard,s there is a great deal of design judgments, engineering judgments if you will available to the practitioner, or to a jurisdiction because the requirement is to meet the new construction requirements to the maximum extent feasible. This allows you to consider what is already been built at the location if your street is in place, if your curb lines are set, if your adjacent building elevations are already determined, you have much less scope for what you can do to make an alternate sidewalk accessible.

And then there is a third requirement which isn't governed by the guidelines, the standards at all, that is that reflects requirements for existing facilities and that's governed by the Justice Department implementing regulation which generally requires a local jurisdiction to achieve something called program access. A broad level of usability that may not be depending on you know what's available to achieve it. That may not be more than very minimum accessibility.

And when you're over the decade and a half going on to two decades now since the ADA was passed what precedence have been set regarding what's an alteration to the pedestrian environment that would triggers them to do something?

This is an issue that has been a very hard one I think in the transportation industry because the justice department implementing regulation say that if you alter a sidewalk or a roadway then you need to install curb ramps as part of that alteration. So the question was what is an alteration. And there was a very famous case in 1993. We short handed as Yerusalem and it was against the Pennsylvania DOT alleging that they had resurfaced quite a number of roadways in the city of Philadelphia and had not provided curb ramps as the implementing regulation required. And in fact that was the finding of the Federal District Court in that case that resurfacing a roadway constitutes an alteration that requires that curb ramps but not anything else but curb ramps be included in the resurfacing project.

And then for existing infrastructure for program access. What guidance we've had from the courts on that?

The Title II regulations requiring jurisdiction to achieve program access has been I think greatly illustrated by the Barden case in Sacramento, California, where the finding of the, well actually it was a negotiated agreement in the end, but the finding I think is essentially is that the pedestrian circulation is a program of a jurisdiction of a city in this case and that the city has an obligation to achieve program access that is a basic degree of usability in their pedestrian circulation for people with disabilities. So Sacramento is now spending a substantial portion of their public works budget for the next I believe its 30 years to ensure that gradually conditions are improved in the whole network of pedestrian facilities.

What's being going on in the voluntary agreements outside of the lawsuits and the court suits?

There has been a recent agreement in san Francisco negotiated there by a group of people with disabilities and legal council with the city of san Francisco where the city has agreed to install over a 100 new accessible pedestrian signals in existing intersections in the city and in 2005, there was an agreement between Maryland state highway administration and the federal highway administration about accessibility in Maryland at intersections resulting in an agreement in which the state agreed to install accessible pedestrian signals at new intersections when new pedestrian signals are installed and also to retrofit some existing one as part of that.

What is the future hold? What you’re seeing these bits of things happening here and there, what do we anticipate if we talked again in 10 years we'd see?

Well we're starting to see I think a good deal of compliance with certain provisions. We see a fair number of detectible warnings going on, we see much more awareness I think of the 2 percent cross slope limit on walkways. Certainly we see an active curb ramp installation program in many many cities. Well I see a lot of countdown signals going in I don’t see so many APS being installed so that's an area where. I hope that we will see a good deal of progress and maybe technological progress as well as installation progress. There are some very nice European models of APS that are very unobtrusive in the urban suburban environment where noise can be a problem. But of course the big issue is we hope to finalize the public rights of way accessibility guidelines which have been developed specifically to guide construction in the right of way and improve on many of the areas in ADAGO where it is not really applicable. I mean you're not going to build the sidewalk with level landings for every 30 inches of rise and hand rails and things like that so we've taken I think a good look at the public right of way and said what kinds of guidelines are needed to specify accessibility in this environment. We’ve gotten a lot of support from industrial organizations, APWA ITE, ASHTO and of course our federal partner, the federal highway administration. Can I highlight our new publication? It’s all of those spoken here.

Sure with People I’ve known about this what's available

It's a new publication called Accessible Public Rights of Way. It’s actually a product of the Public rights of way access advisory committee, but every industry organization contributed to its developments in terms of staff time and member time and it’s basically a guide to dealing with rights of way requirements and alterations where you may not have control of the whole facility. You may have a narrow right of way, a steeply sloping site, cross slope that's excessive and things of that sort so it’s got some work around so we think we'll be very useful.

So what are the guidance’s available for someone that is building something down before the regulations are finalized?

Well of course the best thing to look at are the public rights of way accessibility guidelines, the draft form which is published on our website and all of our materials is available on our website. The provisions for detectible warnings, for APS and so on. A lot of harmonization with the manual on uniform traffic control devices, with the pedestrian facility requirements of ASHTO and the green book but all posted to our website. The federal highway administration in 2006 issued a memo to the field recommending use of the draft guidelines as the best practice optically where ADAG is inapplicable or silent. So it’s the best guidance that I think is available for construction in the public right of way.

We're in Berkeley, California talking with Melissa Kasnitz with Disability Rights Advocates.

What is Disability Rights Advocates?

We are a non profit public interest law firm that works to advocate on behalf of people with all disabilities. People with mobility disabilities, vision or hearing impairments, learning disabilities, developmental disabilities. We litigate on behalf of all of these groups and we also try to provide education and applicacy to improve their civil rights.

What was your role in Barden Vs Sacramento?

I was one of the attorneys that worked on Barden since it was first filed I believe in 1999 and we brought the case all the way up to the US supreme court and ended up with a ruling that importantly required cities to not just install curb ramps at intersection but also to remove barriers along the length of the sidewalk.

What was the basis of the law suit? What were the plaintiffs concerned about?

The plaintiffs were concerned that they couldn’t travel and do their daily business around the city of Sacramento using the sidewalks and they frequently had to travel in the street because barriers kept them either from getting on to the side walk in the first place or from traveling down the sidewalk once they were on it. The plaintiffs included both people who use wheelchairs and people with vision impairments who also had difficulty navigating the sidewalks because of barriers.

What was the legal basis of the suit?

The primary legal basis was the Americans with disabilities act, which requires cities and other public entities to make sure that all of their programs are accessible to people with disabilities. We argued and others have argued that the system of sidewalks is a program of the city and the city does have an obligation to remove barriers and make the sidewalk system accessible.

What was the argument of the defendants of the city?

There were a couple of stages in the law suit. The first stage of arguing was about curb ramps primarily and the question wasn’t about the cities obligations to install curb ramps but rather how quickly did they have to install them, how much money did they have to spend on them, how should they prioritize them and we eventually reached a resolution on those issues.

The second question and the one that was fought for much longer was what obligation the city had to address other barriers and examples of these other barriers because a lot of people don’t think about them are buckled sidewalks weather tree roots or just wear & tear that cause the sidewalk to buckle that can create an abrupt rise that a wheelchair can't get over at all or that is a tripping hazard for someone who is blind or using a cane, narrow sidewalks because there are street lamps or other street furniture that make the sidewalks so narrow a wheelchair can’t get by. overhanging they called overhanging instruction in the regulations, things that come down low and a person with a vision impairment might walk into because they can’t detect either tree branches or low hanging street signs. These are examples of barriers that exist in between intersections.

What were you eventually able to get the siege agree to in the settlement agreement?

Eventually after a lot of battling in the courts, the city agreed that it had an obligation to address all barriers, not just curb ramps. And it agreed on an annual funding formula and a formula for setting priorities to install curb ramps and address other barriers throughout the city. so the courts finally established definitively that they have to address barriers other than curb ramps and we sat down and worked together to come up with a portion of the city’s annual transportation funding that would be used to address barrier removal.

And the case involved obstacles and existing sidewalks. What limitations does this give for if there arn’te any sidewalks at all?

Unfortunately, because I know a lot of people are always looking for ways to require cities to install new sidewalks access law is not a tool for that purpose. What access law is for is as a tool to avoid discrimination. So if there is an existing sidewalk and a person who is using a wheelchair can’t get on to that sidewalk and has to travel in the street, that's discrimination and the city has an obligation to fix it. If there are no sidewalks in an area and a person who uses a wheelchair has to travel in the street and a person who walks has to travel in the street they are treated the same. There may be other legal tools that can be used to force cities to install sidewalks, but access laws can't be used for that purpose.

We are in Sacramento, California talking with Jeff Thom, who is the President of the California Council of the Blind.

What is the Council?

The council is an organization comprised of primarily blind division impaired individuals with some people who are not. We've been around for more than 70 years. Our mission is to advocate for ways to improve the lives for blind and vision impaired persons whether it’s for better education, employment, transportation and of course few issues are more important than pedestrian safety.

And you're also one of the plaintiffs in the Barden case. What was the Barden case?

The Barden case was a law suit brought by the residents of the city of Sacramento with disabilities against the city to enforce the cities obligations under the American disabilities act.

Now this law suit progressed and you got involved in the negotiations with the city. What happened there? What was happening?

Well, initially the settlement discussions were proceeding fairly well. One of the problems that we had to deal with to some degree as vision impaired persons as was interestingly enough the fact that the legal rights organization bring law suits sometimes they didn’t even have enough information about the needs for our disabilty issues.

We had to be very conscientious about making sure that our issues were represented and I think we did this and I think they learned from it and since then they have become very cognizant of the needs of those with vision impairments and subsequent negotiations of the jurisdictions they were very hard to ensure that our needs are met, but initially the negotiations between the city and the disability community were proceeding fairly well. I think that one of the most notable achievements of those negotiations was that there were some initial concerns expressed by people of physical disabilities - those in wheelchairs and those for example who use crutches and they were concerned that the design of detectible warnings and detectible warnings for those I mean may not be familiar with them are essentially dome shape tactual pieces that are put at the beginning of curb ramps so that those with visual disabilities and others can identify when we're about to come to curb ramps that we won’t go out to the streets because you know we don’t have the large curb ramps anymore to give you an indication that the street is going to begin and so curb ramps are required by Federal law to have these kind of warnings on them. There were concerns by people of physical disabilities that these detectable warning designs were difficult for them to get over and navigate. so the city in what I thought was a very amicable and a very professional way actually designed some wooden ramps with various slopes to detect various types of curbs and curb ramps, They used various types of these detectible warnings some that were sort of spread farther apart, some that were wider, would pick different ways of having negotiate off the street and gave individuals with visual impairments and individuals with other disabilities a chance to walk on these ramps so that we could reach a consensus as to the best possible design for all people with disabilities. And during the course of these negotiations we really reached an amicable view on what was best for everyone and what could have been a divisive point among the disability can be turned into something that I think should be copied, has been locally and should be copied by others throughout the country and that is to come together and to work collaboratively. So I think that was really a high point in the whole learning and collaborative experience, a high point of the negotiations.

Where there times when the negotiating process didn’t go so well?

Well, as negotiations progressed and it looked like we might be coming towards a settlement, positions hardened. The city for whatever reason decided that they really didn't want to agree to the terms we were trying to the terms we wanted them to accept and they hardened their position. They went to court to fight the idea that they had a legal obligation to meet any of the terms that we wanted and we were fortunate that the courts were sympathetic to our position and even the United States dept of justice was coming in on our side. But still there was a chance that they might go up to the US Supreme Court on this and that’s when I think we started to exert some political pressure. The disability community really mobilized and came to the city council and got some press coverage and I think raised the eye brows of the city council. they didn't want to look like they were not willing to make the capital city of California a model for the future, they didn't want to make it look like they were opposing disability access, so I think in the end they were willing to reach an amicable settlement and I think that as a future that's how it worked out and everybody has been very happy with what they decided to do.

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