AAB Rejects Variance, Fines City... Maybe

Posted by John B. Kelly

The Massachusetts Architectural Access Board (AAB) dealt a double blow today to the city of Boston's attempts to be relieved of its legal obligation to bring a stretch of Huntington Avenue sidewalk into compliance with state and federal access requirements. The AAB unanimously rejected the city's variance application regarding cross slope violations, and levied a fine of $500 per day since last November 30, to be reevaluated contingent upon the city's ability to bring all crossslopes under the legal maximum of 2% by July 1, 2006.

Disability advocates from Neighborhood Access Group and the Boston Center for Independent Living filled the room, and told stories of danger, fatigue, and fear due to excessive crossslopes. Wheelchair users spoke of veering towards the curb and fighting for control, and being exhausted by the additional physical demands of a tilted walkway.

In a sometimes testy session, Boston Commissioner of Disabilities Stephen Spinetto was unable to meet the burden of proof that compliance is "technologically infeasible or the cost of compliance is excessive without any substantial benefit to persons with disabilities." Neither Spinetto nor another city official (I did not get the name) contested compliance feasibility, but tried to argue excessive cost. Boardmember Martin Ebel, focusing relentlessly on the question of "substantial benefit," left Spinetto no choice but to argue that slopes between 2% and 3.1% would be "minimally" problematic . Member Myra Berloff, Commissioner of the Massachusetts Office on Disability, recounted the genesis of the 2% standard: federally sponsored studies had showed that 3% cross slopes inflict 50% more exertion upon people with disabilities.

As the complainant, I stressed the overall mission of the board to integrate people with disabilities into society by ensuring our "full and free use" of all sidewalks, and that the city's bad faith noncompliance since missing its first deadline of July 1, 2005, necessitated a large fine. I reminded the board of the city's lack of response to 4 hearing notices and its failure to appear at the original January, 2005 hearing. I ridiculed its contention at a fine hearing that March of not being "the responsible party" for the sidewalk -- an argument it also lost on appeal to Superior Court. I described the city report of July 2006, which asserted compliance even as some slopes were still over 2%, and how dubious the data seemed given that the base of the sidewalk was not altered during any work. My own measurements showed slopes of up to 3.4%, which I detailed in a letter to the board last October.

Boston then asked for an additional 60 days to respond, but was ordered to achieve compliance a second time, by November 30. On that final day, the city submitted a variance arguing that it was now too cold to fix the sidewalk! And finally, this past February, it revised its variance to ask for relief from those crossslopes between 2% and 3.1%. The board responded by scheduling today's fine hearing.

More soon...