SUSPENSE! Will the city meet its deadline of November 30 to repair Huntington Avenue?

Posted by John B. Kelly

Left: 3.4% cross slope on Huntington Avenue. Click on image for larger version. Photo Serban Dragomir.

The city of Boston, never one to squander an opportunity to repair its relationship with the disability community, has until the end of tomorrow to repair the cross slopes on a short stretch of Huntington Avenue in front of the Utrecht art store and Symphony Towers West (across from the side entrance to Symphony Hall).

It is a long story, and one in which the city does not appear in good light. But let's see if the city can manage to have the sidewalk brought into compliance by tomorrow. If not, we will immediately file a letter with the Architectural Access Board.

As far as I know, the city has not done so, but I will have it checked tomorrow.

So will the city repair the sidewalk? Or will it ignore another deadline? Inquiring minds want to know.

Tune in tomorrow, and we will let you know....

Tedious, Complicated, Background:

In previous stories, I described how NAG and BCIL filed a complaint against the city on August 6, 2004, regarding the stretch of brick sidewalk between Massachusetts Avenue and Gainsborough Street, across from the side entrance of Symphony Hall (and in front of the Huntington Theatre and Pizzeria Uno). The city failed to respond to any notices regarding the hearing in January of 2005. The Architectural Access Board, meanwhile, respectfully listened to a lot of eloquent testimony from people with disabilities. So the access board found against the city .

Then the access board held a hearing to determine whether it should fine the city for its smug contempt for the access board's process . At this hearing, the city argued that it did not even legally own the sidewalk, that "care and custody of the sidewalk" remained with the MBTA. City lawyer Cook tried the George Bush approach of repeating the phrase over and over to see if magic would occur. It did not.

As in, no, just because the MBTA coordinated construction on behalf of the city doesn't mean that it is responsible for it -- 18 months later! The contractor supervised by the MBTA finished the sidewalk in early 2004, and now it was 2005, with the only construction remaining including a small amount of landscaping (those poor dead trees) and crosswalks (those controversial decorative ones just installed on Huntington Avenue).

For a homey analogy, consider that when a contractor finishes some construction on your property, and someone files a complaint against you about it , you are the responsible party, not the contractor who finished his work 18 months ago. Imagine the field of property law if such were the case.

In a hilarious exchange between board members and city engineer Para Jayasingh and Kate Cook, the board concluded that responsibility remained with the city (but then realized that it probably didn't have the right to fine the city yet).

So the city, ever standing on principle, appealed to Superior Court, which duly rejected the city's argument. I'm still waiting to read the decision!

Then the city seems to have had an idea, like "maybe if we told the MBTA to fix the sidewalk, it could get fixed and we wouldn't have to pay anything either."

This produced a farcical meeting on the sidewalk with probably 10 important officials, who squatted and squinted and tried to line up pictures of noncompliant bricks with the shifting, settling bricks in front of their eyes.

During this time we were gathering signatures at the Symphony Towers buildings on a petition to submit to Mayor Thomas Menino, asking him to take this opportunity to replace the terrible brick sidewalks with a functional, passable sidewalk surface.

The city then actually did get some work done, probably paid for by the contractor McCourt (the guy who owns the Los Angeles Dodgers), and in July certified to the access board that the sidewalk was now fully compliant.

Something smelled a little bit fishy, though. How could the city repair the cross slope problems on the sidewalk without digging up a lot of bricks?. After all, we had measured the sidewalk ourselves, and we saw that it was on occasion over 3.0%. The board was requiring the city to repair all slopes over 2.0%. Now the city was certifying that cross slopes were very low without having done any work.

In August, protesters embarrassed Mayor Menino as he announced federal money to reconstruct the intersections of Massachusetts Avenue and Huntington, Westland, and St. Stephen. I had with me the citizen petition, but before the event, I panicked a little bit and gave the 64 Symphony Towers signatures to Nikko Mendoza, the mayor's liaison to the Fenway community. (When I called her last month to inquire what the mayor said about the petition, Mendoza said that she would have to call me back, that the mayor had perhaps given the petition to Commissioner of Disabilities Spinetto or the Department of Public Works. Following what seems to be standard city practice, she never called back.)

Anyway, with a new Smart Level ™ paid for by the generous contribution of the Mission Hill/Fenway trust fund, a helper and I went out to the sidewalk and checked the cross slopes. Imagine that! Cross slopes reappeared with a 3.0%, 3.4%, etc. I wrote a letter, including pictures, to the access board.

So the access board told the city that it had to repair the sidewalk. The city waits until literally the last second, and sends Kate Cook over to the access board to ask for an extension, not an extension to repair the sidewalk, but an extension on the board order to reply to the order to repair the sidewalk. We couldn't make this stuff up.

The access board, becoming ever more feisty in the face of continual city contempt, immediately ordered the city to have the sidewalk compliant by November 30.