Access Board Transcript, May 8, 2006

Posted by John B. Kelly

Thanks to Words and Deeds of Newton, we are able to provide the complete transcript of the access board's hearing on May 8, 2006.

I put the choicest exchanges in bold print. If you can't wait, scroll down to the exchange between board member of Martin Ebel and Boston disabilities Commissioner Stephen Spinetto. It is priceless!

MASSACHUSETTS ARCHITECTURAL ACCESS BOARD HEARING, MAY 8, 2006

· Gerald LeBlanc, Acting Chairperson

· Douglas Semple, Member

· Martin Ebel, Member

· Myra Berloff, Office on Disability designee

· Diane MCLEOD,

PLAINTIFFS: John Kelly, Jack Grieco, Billie Tyler, Pam Beeler, Richard Nurt, Kathy Podgers, Karen Schneiderman, James Magee.

DEFENDANTS: David Mariano (Engineer, Fay, Spofford & Thorndike ) , Stephen Spinetto (Boston Disabilities Commissioner)

GERALD LeBLANC: This is a hearing before the Architectural Access Board regarding Huntington Avenue sidewalks between Mass. Ave. and 250 Huntington Avenue in Boston. It’s a variance request and also a find hearing with Docket V06046. The day is the 8th of May in the year 2006 at approximately two p.m. This hearing is being recorded and the sound file can be reviewed during 14 hours of any business day. At this point, I’d like to introduce the Board. My name is Gerry LeBlanc.

[MR. LeBLANC INTRODUCES AND SWEARS IN PARTICIPANTS.]

STEPHEN SPINETTO: As you know, there have been some issues of the cross-slopes on the sidewalk. The City of Boston was not the contractor and was not even the project manager for this project. It was a Mass. Highway Department project in conjunction with the MBTA. We were not party — no signatures with the contractor. The work consisted of some sidewalk reconstruction that did not include curb resetting. The curb heights -- the curbs stayed the same, as did the thresholds and the issues on the sides of the buildings, and in many places, including the MBTA entrances, those were required to stay at the same height. So the issue was just the resurfacing of the sidewalk itself, and tree grates, things like that. It was just a surface restoration.

There were places -- we had -- we went out and measured once with the plaintiff. When we went out and measured -- the areas that we measured we found to be in compliance. Now that was last year sometime. Now the difficulty is with a unit paver system. You could be – one foot here in compliance and move six inches and find that you have a little bit of a slope there, and in particular when you’re using a two-foot level, if the bricks aren’t dead flat themselves, these unit pavers are not absolutely flat. You can have two bricks actually meeting each other. It doesn’t take much more than kind of a small pebble any kind of imperfection in the surfaces of the brick could throw it into a noncompliant level, particularly with a small two-foot level, when you use electronic smart level.

Somewhere along the line, the complainant went out and measured on their own and found some specific areas that were in non-compliance. We subsequently went back. We thought we were in compliance with what we measured. We weren’t with them when they did their own test. We had our professional engineers come out and did literally a very extensive [expensive?] measurement cross-section down the sidewalk. Maybe you can explain what you did exactly at this process.

DAVID MARIANO: [SHOWS DOCUMENT WITH MEASUREMENTS.] Just to orient you: this is the art store [Utrecht Art Supplies].

STEPHEN SPINETTO: Green line --

DAVE MARIANO : This is along Huntington Avenue. You ignore this stuff in the middle. This is a continuation over here. There’s a red mark here. It’s the same red mark as over here. Up at this end is Gainsborough Street. In December, on the design [... unintelligible...], we met with AAB to determine, first, determine how we were going to do this. We agreed that we would go every 10 feet. If we found a cross-slope in the travel way that exceeded two percent, we would go back a few feet and go forward. If we did not find – for instance, over in this area, you do not see any red or any green. The cross-slope is 1.6 percent. We just moved on to the next ten feet.

Now there are three colors you can see on the plan. The red is where the cross-slope exceeded three percent. The green was where the cross-slope was between two and 3 percent, and the blue is where the cross-slope is two percent or less. So, we gathered this information – I believe in January -- and that’s the plan you see in front of you. The contractor went out there with the MBTA – and I believe Steve -- and requested a variance for a cross-slope variance of between two and three percent. So the City requested that the contractor repair all those areas that exceeded three percent. This is the result of that -- [rustle of papers]. There are a lot of a...

GERRY LeBlanc : [Discussion of handing out copies of findings]. We’re taking this as Exhibit One. Go ahead.

DAVE MARIANO: This represents the survey we did on Saturday. The contractor just finished up on Saturday. This is the red area in front of the art store. He went out there and tried to match – he tore up all the brick. He re-raised it. He tried to get the cross-slopes less than two percent and when he couldn’t he went a little over two percent. As you can see the red area now, in that section – they are two bricks wide and 3.1 percent is the cross-slope --

STEPHEN SPINETTO: On two bricks

DAVE MARIANO : on two bricks.

STEPHEN SPINETTO: On two bricks

DAVE MARIANO : Now, I don’t think you want to go through all these numbers. It’s pretty self-explanatory. If you go to the next sheet, it’s the next area that’s in red, he was able to bring all the cross-slopes between probably two-and-a-half percent and less. The third area, the same thing. The fourth area, there is one area where he missed -- and it’s because the bricks are so irregular. They're "City Hall Pavers." It's a baked brick, it's not a wire-cut brick and the surfaces are irregular.

Again, it looks like he was trying to match the south there also. As you can see, there aren’t many red areas compared to the one [i.e., survey] in January.

STEPHEN SPINETTO: There's one larger area of red, at the NStar vault.

DAVE MARIANO : Well, there's another 1 --

STEPHEN SPINETTO: There's two vaults, one's NStar for sure, one's...

DAVE MARIANO : this sheet here, sheet 8 of 9 – we went out, and the blue area was actually where the contractor was asked to fix. We started measuring a side of the vault and we found that there was another area, where the contractor....

MARTIN EBEL: What does this area correspond to on the larger drawing?

STEPHEN SPINETTO: Right about in the spot above the center. Station 4+10. There are three areas – aside from these little spot areas. There’s an NStar vault , and we’re talking with NStar now about resetting that because that exceeds three percent. The area I just explain to you, and that's up by Gainsborough Street. There's a driveway, the walk in front of the driveway is steep, also. And that’s because they couldn’t lower the grade. It’s private property at the back of the sidewalk.

GERALD LeBLANC opens for questions from the board.

MR. CLIFFORD: Do you remember -- this is the third time? Originally and then you you fixed it, and then you fixed it again? Or was it just once?

DAVE MARIANO : The contractor was out there [once?]

MARTIN EBEL: Who made the choice to use the unipaver system?

STEPHEN SPINETTO: The City, the MBTA and the community after a couple of years of community meetings.

MARTIN EBEL: The community made the choice?

STEPHEN SPINETTO: Yes.

MARTIN EBEL: Did you have a democratic vote on the use of unipavers?

STEPHEN SPINETTO: It wasn’t a democratic vote, but --

MARTIN EBEL: Who made the choice, sir?

DAVE MARIANO: As I said, the City of Boston and the MBTA and Mass. Highway.

MARTIN EBEL: And the person who owns the property is the City of Boston?

STEPHEN SPINETTO: Correct.

MARTIN EBEL: Has -- When did the reconstruction of the reconstruction begin? This year.

STEPHEN SPINETTO: Well, we did some in the fall and then we discovered that we didn't hit all the areas, and we did some this spring.

MARTIN EBEL: When did we begin?

STEPHEN SPINETTO: I’m not sure of the date.

MARTIN EBEL: And is it your intention at this point in time -- you’re looking for us to grant you a variance on all of the cross-slopes that are currently out of spec for our regulations? Is that correct?

STEPHEN SPINETTO: All the areas that are between two percent and three percent. That’s the requested variance.

MARTIN EBEL: So these red areas with the label Exhibit One – if the contractor's gone back and fixed and yet they're still over three percent, your intention for those is to do what?

STEPHEN SPINETTO: The NStar vault, NStar will come back and fix that. On the corner of -- in front of the Green Line entrance we are, in the next year or so, replacing that entire sidewalk anyway, using concrete as part of the Massachusetts Ave. -- include that as part of the Massachusetts Avenue reconstruction. We're taking [steps?] We’re going to replace that with concrete sidewalks there, along Massachusetts Avenue and in the Symphony area. So that's going to be replaced in any case.

MARTIN EBEL: You're referring to what? Please demonstrate. Show me.

STEPHEN SPINETTO: From the corner of Mass. Ave. to the driveway --

MARTIN EBEL: Public alley

STEPHEN SPINETTO: yeah, public alley, that entire area will be replaced with concrete.

MARTIN EBEL: When is that going to happen?

DAVE MARIANO : In a about a year-and-a-half.

MARTIN EBEL: A year and a half. So you’re asking for a variance for a year-and-a-half to fix that? I don’t believe you have that in your variance request.

STEPHEN SPINETTO: No, it’s not. We can -- It’s only because we -- I've only had this information regarding the two-brick problem today, because they took the measurements on Saturday. So I didn’t know where these issues, where they would be. Also, we'll probably go back and fix those bricks.

MARTIN EBEL: So just exactly what is it that you’re proposing to do and what is it that you’re asking for a variance for with regard to that section of the sidewalk?

STEPHEN SPINETTO : We will fix that area of sidewalk.

MARTIN EBEL: When?

[Spinetto and Mariano huddle inaudibly]

STEPHEN SPINETTO: I'd say a month. I can get it done in a month.

MARTIN EBEL: And all the rest of these?

DAVE MARIANO : That does not include the NStar vault.. They’re on their own schedule.

MARTIN EBEL: the NStar vault?

STEPHEN SPINETTO: And that's not the city -- that's owned by NStar, it's not the city of Boston.

MARTIN EBEL: So you’re telling me you can fix everything that’s in excess of three percent within 30 days?

STEPHEN SPINETTO: I can do that. I can do that.

MARTIN EBEL: So rather than a July 1 time request you can get by with a June 8 time request?

STEPHEN SPINETTO: Right. Because they are over 3%.

MARTIN EBEL: And for all those areas that are over two percent but less than 3% -- I'm sorry, less than 3.1 percent, you’re proposing to not fix those at all, correct?

STEPHEN SPINETTO : That is correct.

MARTIN EBEL: And what is the rationale for that?

STEPHEN SPINETTO: The rationale is that it’s a very minimal, it's a minimal slope and in order to do that we would have to re-re- -- take up -- literally reset the curb. Reset the curb and possibly work with the owners because it’s all private property. One portion of the sidewalk –half of it is private property. In order to make those match lines work, we'd end up having to reset that also. The private landowners would end up having to get involved. In order to make that one percent, it would cost huge amounts of money to gain that one percent. We don't think that's practical [OVERLAPPING VOICES.]

MARTIN EBEL: How much would it cost?

STEPHEN SPINETTO: We haven't run a number

MARTIN EBEL: So we don’t have any evidence before us about the cost. Turning to page 2 of 9 of the sheet you handed out, in the 1-2-3 third place down, “Plus 4 Bricks." Left travel-way is 1.9 percent. At travel-way is 0.2 percent. And to the right of the travel-way is 2.8 percent. Are these travel-ways that we’re discussing here all equally [thought?]? What does that mean?

DAVE MARIANO: The total with the sidewalk is 8 feet. And we consider the travel-way from the property line to _____, depending on whether there is street furniture. We did not go [?] to curb, because you can't travel along...

MARTIN EBEL: So for the purposes of understanding this document that’s you’ve given us that’s been marked as Exhibit One, it’s safe to say that left of travel-way, at travel-way, and right of travel-way are not all the same dimensions?

DAVE MARIANO : That is correct. It’s about six feet across. What we did was we took the smart level and shifted it across.

MARTIN EBEL: So each of these columns represents roughly two feet?

STEPHEN SPINETTO: Approximately, yes.

MARTIN EBEL: All right. So looking at the third one down on page 2 of 9, "Plus 4 Bricks," left of travel way is 1.9, at travel way is 0.2, right of travel way is 2.8. Left travel-way and right travel-way are equally dimensioned. Then if you were to move this slope across the two, across the immediately adjacent portion of this route it would be far under the cross-slope. And you said that the reason you can’t do that is because it’s going to be too expensive and you have to move the curb. Obviously, you wouldn’t have to move the curb to fix this problem. You don’t have to deal with an owner. You don’t have to buy a right-of-way. You don’t have to do anything except make it comply with the regulations. Why are we suggesting that we don’t comply with the regulations?

STEPHEN SPINETTO : Even with that it’s still extraordinarily expensive to do this.

MARTIN EBEL: How expensive would it be?

STEPHEN SPINETTO: Well, how much did it cost us to do that little bit of work we did the last couple of days? Just that small amount of work. [Discussion with Mariano] $40,000?

MARTIN EBEL: $40,000 for what, sir?

STEPHEN SPINETTO : To correct the difference between that drawing and what we have here.

MARTIN EBEL: Did, did the contract that was left require that the sidewalk be built in accordance with Massachusetts Building code?

STEPHEN SPINETTO: I, you know, I assume it did, but I’m not a party to the contract. Nor is the City a party to the contract.

MARTIN EBEL: Did the City have anything to do with this contract? Your position is it didn’t, right?

STEPHEN SPINETTO: No, it didn’t.

DAVE MARIANO: No, it didn't.

MARTIN EBEL: You just own the sidewalk.

STEPHEN SPINETTO: We own the sidewalk. It’s a Mass. Highway Department project.

MARTIN EBEL: And you apparently granted Mass. Highway permission to tear up your sidewalk.

STEPHEN SPINETTO: Correct.

MARTIN EBEL: And when you granted them permission to tear up your sidewalk –

STEPHEN SPINETTO: And the MBTA.

MARTIN EBEL: And the MBTA. -- you probably told them, “you can do that if you put it back in accordance with the Mass. Building Code.”

STEPHEN SPINETTO: Most likely on the contract --

MARTIN EBEL: Well, if you didn’t, then shame on you because you’re, of course, required as the owner to maintain it. And I’ve seen that they’ve done work here to bring it not into compliance with the building code. I don’t understand this. I don’t understand why you spent $40,000 to have them not bring it into compliance.

STEPHEN SPINETTO: Because we were requesting a variance for the difference.

MARTIN EBEL: All right. And I’m looking for a reason for the variance. There are two that we can grant it on: 1) it’s technologically infeasible. I don’t think anybody could argue that here. You could make this perfectly flat if you chose to. Right?

STEPHEN SPINETTO: I’m not sure that’s –

MARTIN EBEL: If we wanted to, we could comply with the law, couldn’t we?

AUDIENCE: Yes, yes

DAVE MARIANO : [inaudible]

MARTIN EBEL: We can construct the sidewalk without any cross-slopes that exceed 2% , is that correct?

STEPHEN SPINETTO: No. I disagree with that.

MARTIN EBEL: You disagree with that.

STEPHEN SPINETTO: I disagree that any sidewalk you can do that.

MARTIN EBEL: You think it’s impossible to build such a sidewalk.

[LAUGHTER]

STEPHEN SPINETTO: There are places where it would be impossible. I don't know if you've ever been out on --, but there are sidewalks

[OVERLAPPING VOICES]

MARTIN EBEL: Excuse me, sir. I’m talking about this section –

STEPHEN SPINETTO: You said any sidewalk.

MARTIN EBEL: Any sidewalk on this roadway. At this location. Can it be built in compliance with the building code?

STEPHEN SPINETTO: Yes.

MARTIN EBEL: OK. So that means it’s not technologically impossible.

STEPHEN SPINETTO: I would say it’s not technologically impossible.

MARTIN EBEL: But now we’re turning to the other prong of why we might grant a variance which is, it is excessively expensive without benefiting people with disabilities. Is it your contention that a cross-slope in excess of two percent and less than 3.1 percent does not pose a problem for people with disabilities?

STEPHEN SPINETTO: I would say it is an extremely minimal problem.

MARTIN EBEL: And that’s based upon what, sir?

STEPHEN SPINETTO: That’s based upon -- for instance, you’re own code had it at three percent up until fairly recently. It is, technically, a very minimal difference.

MARTIN EBEL: Do you have any evidence for us that it’s going to be less troublesome for a person with disabilities to traverse these sidewalks?

STEPHEN SPINETTO: Less troublesome than what?

MARTIN EBEL: Than if it met the code.

STEPHEN SPINETTO: For most people that wouldn't, there may be some people who could tell the difference , but most people couldn’t even tell the difference.

MARTIN EBEL: Most people can’t tell the difference.

STEPHEN SPINETTO: That is correct.

MARTIN EBEL: Most able-bodied people?

STEPHEN SPINETTO: Most people.

MARTIN EBEL: Most people with disabilities or most able-bodied people?

STEPHEN SPINETTO: Look. Let’s just cut to the chase. OK.

MARTIN EBEL: Yeah. That’s what I’m trying to do here but you’re dancing around with me and I'm starting to get frustrated.

[CROSSTALK]

STEPHEN SPINETTO: Let's just say --

MARTIN EBEL: You know, here's what we’re going to do. I’m going to ask you, point blank: are people with disabilities better off with a sidewalk that meets–

STEPHEN SPINETTO: Of course! I told you that.

MARTIN EBEL: -- code.

STEPHEN SPINETTO: Yes.

MARTIN EBEL: No further questions.

[GERALD LeBLANC calls on a few board members who don't ask questions]

Unknown board member : Were these dimensions verified by the City of Boston?

STEPHEN SPINETTO: Verified by our engineer.

MYRA BERLOFF: I have a couple of questions. First, a response. There was -- Mr. Ebel asked if there was a difference in effort between a two percent and three percent. In fact, prior to the passage of the Americans with Disabilities Act Architectural Guidelines by the U.S. Access Board, they did studies. And they determined that it takes 50 percent more effort to travel a three percent cross-slope than at a two cross-slope. That’s how they came up with the two percent cross-slope. Although I don’t have those studies in front of me because I didn’t know you were going to ask that question, that is your official answer according to the studies that were done. Mr. Spinetto, you said the People of Boston voted for the brick sidewalks. I was wondering how that vote was taken.

STEPHEN SPINETTO : This was a community meeting process that the reconstruction efforts on the street were done. I was not at the community meeting, so I cannot speak to what happened at those community meetings, but there were a series of community meetings held about full Huntington Avenue reconstruction.

MYRA BERLOFF: I’d like to just ask a general question. Did anybody in this room vote -- you could just say yes -- in favor of the brick sidewalks?

[AUDIENCE MEMBERS SAY “NO.”]

MYRA BERLOFF: Thank you very much. You’ll get your turn. I just wanted to know the answer to that one. It sounds like the vote may not have included folks from the disability community or else they weren’t listened to. But that’s neither here nor there. Mr. Ebel asked a lot of the questions that I had. The other thing was that Mr. Spinetto , you mentioned that this was not sidewalk reconstruction, but resurfacing of sidewalks.

STEPHEN SPINETTO: Correct.

MYRA BERLOFF: And I just wanted to – and I don’t have the section but I’m sure that Mr. Hopkins can quote me the section. We do require that when sidewalks are resurfaced that they comply. Just so that I can --

STEPHEN SPINETTO: Right. I was just bringing up the extent of the work, I was just bringing it up to what extent that the curbs weren't reset or anything like that.

MYRA BERLOFF: yeah, but we do require specifically in our regulations, Section 22, that resurfacing of sidewalks does comply. All right, thank you.

DIANE MACLEOD: I’m getting the impression that there is some frustration on the City’s part with regard to the brick sidewalks. So I guess I have to ask why do you keep doing them in brick?

STEPHEN SPINETTO: Could I ask you a question? Is brick a violation of the code?

DIANE MACLEOD: Not if they’re in compliance.

GERALD LEBLANC: Answer the question Steve.

STEPHEN SPINETTO: [inaudible], because that’s what the community asked for.

DIANE MACLEOD: No further questions.

GERALD LEBLANC: No further questions? We'll hold off on the variance request. I'd like to give some of the people an opportunity to speak about the hearing. Sir?

JAMES MAGEE: Why is it that we weren’t even notified [inaudible]?

[McGee repeats himself, and this question is translated]

GERALD LEBLANC: Why weren’t you notified about the brick sidewalks? I have no idea.

JAMES MAGEE: [inaudible but about bricks] Why can't they make it straight?

MYRA BERLOFF: Not that we agree or disagree with the use of the bricks because, unfortunately, we have no control over the surface material that’s used. What we have control over, what we are responsible for is the cross-slopes and the changes in level and -- So the city is -- Personally, I don’t particularly care for bricks. But the City has the right to use brick. So what we have to work on today to figure out is, do the bricks that are being used, or the way these sidewalks were constructed, do they comply or not comply with our regulations? My guess is, and you can all correct me if I’m wrong, nobody in this room representing the disability community likes bricks. Unfortunately, we’re not here to address that today. So all we can address today are these cross-slopes -- we are here for just crossslopes. That’s all we can discuss today. So if you can just please try to leave your testimony to that, that would help us a lot.

JAMES MAGEE: [inaudible]

GERALD LEBLANC: There is certainly a difference in riding a scooter on bricks. Any further questions?

KATHY PODGERS: My name is Kathy Podgers. I came here from Cambridge, Massachusetts, and I’d like to speak on the issue of cross-slopes. I have a broken neck -- you can't see it -- and the result of the broken neck -- I'm not paralyzed -- is that when I lose my balance. You know what happens when you lose your balance and you have to like move your neck around, and at that causes inflammation of the nerve roots. In the cervical vertebrae. The medical work for that is ridiculitis. Right now I’m suffering from it. Just coming here across the sidewalks up from the subway and my right arm feels like it’s broken. If your arm felt like this you’d go have an X-ray. And the same way with my feet. This happened when I fell on a non-compliant cross-slope in Cambridge, at an intersection only three houses from my house. And I didn’t know the term that I should use, but it's cross-slope.

[From here through Pam Beeler has not been double checked]

When the City decided to do the sidewalk improvement and repair program, they didn’t mark that place where I had fallen and I couldn’t get up at all. Neighbors came and they said another woman only six months before had fallen in the same place. It took me six months to recover to be able to walk at all like I’m walking now. And I can’t use the crutches on the walking leg because I can’t support myself.

GERALD LEBLANC: We’re here talking about Huntington Avenue and Mass. Ave. in Boston. In Boston.

KATHY PODGERS: Right. And I go to the Symphony and I use that sidewalk and what I wanted to know is the cross-slope I fell on was between two and three percent, and this might not be something that you all can tell the difference, but when I walk on it, I feel sea-sick. And also, my friends who use walkers – senior citizens who use walkers – when you have widths like this that have all different measurements across a section, they can’t make the walkers flat. Especially at Symphony Hall.

[GERALD LEBLANC interrupts.]

KATHY PODGERS: I just wanted you to know how bad it can be between two and 3%.

PAM BEELER: I have a difficult time on slopes. I have to stay on the top of the slope, otherwise, especially in the winter, I may slide all the way down to the curb.

RICHARD NURT: What the crossslopes do to me is I push my chair, I'm not in a power chair. I need to push with both arms because I have bad shoulders. What the cross-slopes do is they force me to push with only one arm which is really difficult.

JACK GRIECO: I live at 333 Mass. Ave. right on the corner. All I know is that when the bricks were there, trying to make the best of the situation that we had in the winter, especially, or when it's raining is that the rain is going down the sidewalk between the sidewalk itself, the curb cuts and the driveway. And that sidewalk is an accident waiting to happen. Specifically in the winter when it’s glazed. There's a lot of foot traffic. People in wheelchairs trying to go round, people that are walking – people on their way to work – use the same sidewalk. And you hit a patch, you can hydroplane, and that there is bricks missing, there is bricks lifted,. _____ Eventually, someone's just going to take a dive. [Inaudible] chair spin out.

JOHN KELLY: I just want to rebut some of what Mr. Spinetto said. First of all, this stretch of sidewalk, the main part that’s been complained about, runs along a little retaining wall. There are no buildings there.

They completely dug up a perfectly functional concrete sidewalk in 2003. The disability community made our objections known, and they continued. They rolled right over us -- installed this brick.

I was very intrigued by the statement of the gentleman with Spinetto [Dave Mariano] saying that as way of explanation that these bricks are "very irregular." I think that he basically just said that these bricks do not meet the code of AAB which is that the surfaces shall be smooth, lie in a continuous plane and -- its just incredible.

The board, I think, really needs to remember why we’re here today and that is: was the reason of the city of Boston did not comply with your order last July and again last November, was it with justification? Has Mr. Spinetto brought in any good reasons? No. First of all they tried to say that "we are not the responsible party." And he started saying that drivel here again today. You rejected that ridiculous argument. Property law would collapse in this country if this were true. If someone painting your house -- is not the responsible party; the owner is.

Then they went to Superior Court and Superior Court rejected their absurd argument. Then they submitted documentation saying that, “all relevant violations have been corrected.” "All corrections do meet AAB regulations and guidelines." And yet in their very own report they show that four of the cross-slopes were above two percent. And I think that this administration just doesn’t accept that the Americans with Disabilities Act has been passed and that you have adjusted your own codes to conform with it.

So what justification does the city have for not having complied by last July? When I saw the report that they submitted I thought something had to be fishy because they had done nothing to the brick except pound a few with a mallet to try to get them down a little bit to fix the cross-slope. This is a continuous cross-slope that goes from the retaining wall to the curb, as Mr. Grieco said. This is not just a little up-and-down based on the irregularity of these poor paved bricks. So, I sent in a letter showing pictures of cross-slopes of 3.4, 3.0, 3.3, and 2.8 percent.

The Board asked the City to respond. At the last second, as always, the city asked for 60 days to respond. The AAB said, “Why don’t you get it all fixed by November 30.” Then on November 30 the City asks for a variance saying, “We can’t fix it now; its too cold out.” That is not a reason for a variance. Now it says that between two and three percent is not an issue for people with -- for "people," whoever that includes in his estimation. Now on 2/13 they write, “Although there are some sections of the sidewalks that is over the required amount, most of the sidewalk meets the standards.” Well that’s great, Mr. Spinetto. That’s great that most of it meets the standards. You really set a high bar for yourself.

They do not think that between two and three percent is a problem. It is dangerous, as Myra Berloff said, and we just hope that -- you are our only protector in this issue. We cannot get the City to pay attention. We can’t get the media to notice. The ADA -- we have to go to federal court and get nowhere. You are commissioned to see that we can have full, complete participation in society; that sidewalks and facilities are usable. James Magee has to go in the street. Eileen Brewster can’t even go up the street. Billie Tyler can’t use the sidewalk. And when they come out and repair the sidewalk on Saturday, do you think they maintained access around the site? I had to go in the street. They had nine workers. They did not maintain access.

The reason to fine the City is to make them start obeying the law. Please do not feel sorry for them and think if you take their money away and put it into the General Fund that they will have less money to do access work. They come in and they talk about expense. This sidewalk costs five times as much as a concrete sidewalk. They took five to ten thousand dollars to put in Durathem cross-walks, which jiggle us like rumble strips on the Turnpike under a car. And they’re brilliantly designed because they only go up and down 3/16^th of an inch at a time, so they don’t violate the code. They can always find their loopholes. And the only community that they represent is the community of institutions that line the so-called "Avenue of the Arts," which the more artistic it becomes, the less people with disabilities are allowed to be on it.

GERALD LEBLANC: Thank you very much. Any further questions? You can ask questions of each other.

EILEEN BREWSTER: I have a question. I would like to know if it was so expensive because it was done over the weekend. Overtime, you've got to pay your workers overtime.

GERALD LEBLANC: What we could do is have a motion to take it under advisement.

STEPHEN SPINETTO: Are you talking about the variance, or --

GERALD LEBLANC: On the variance, or you can make a motion.

MARTIN EBEL: I’d be happy to make a motion to deny the request for the variance on the basis of the failure based on the inability to show technological infeasibility and failure to show any evidence of substantial cost without substantial benefits to people with disabilities.

Unknown male board member: Seconded.

GERALD LEBLANC: Second on the motion. Discussion on the motion? Were looking at time, full compliance --

On the motion, all those who favor? The motion carries.

MARTIN EBEL: Mr. Chairman, I make a motion that we seek full compliance from the City on all of these cross-slopes, not later than July 1.

GERALD LEBLANC: July 1. Is there a second to that motion?

Unknown male board member: Seconded.

GERALD LEBLANC: Discussion. On the motion, all those in favor? The motion carries.

MYRA BERLOFF: Can I make another motion. Could I make a motion that as construction proceeds on this sidewalk that an accessible path of travel is maintained so that the folks in the community can get around still?

Male board member: Second.

GERALD LEBLANC: Second. On the motion, all those in favor? Oh, the fine hearing.

MARTIN EBEL: I have a question. This Board ordered last July that the City be in compliance. We granted you an extension which was rather lengthy to the end of November that you be in compliance, and yet the City is not in compliance. The City is not even proposing to be in compliance. Why have we not complied with valid orders of this Board?

STEPHEN SPINETTO : I, I've not --

MARTIN EBEL: You have, you have no information for us whatsoever?

STEPHEN SPINETTO: Well, because we had done measurements with the complainant that during the course that were filed with the hearing, that we found in compliance. Because the areas we measured were in compliance. If you look, there are plenty of places that are -- most of it is in compliance. It depends where you put your ruler down. And at the time, John [Kelly] was with us when we did it.

MARTIN EBEL: So you have nothing to bring to the table about failing to comply with the order.

STEPHEN SPINETTO: No.

MARTIN EBEL: In light of there being no evidence whatsoever -- gosh, I’m loath to fine you if the work were completed.

JOHN KELLY: Do we, do we disabled people have an opportunity to speak about the fine?

GERALD LEBLANC: No , not at all. Pick a date, Mr. Ebel, when the fines will start.

MARTIN EBEL: I move that we begin fining the City at the rate of $500 a day from the date of our November 30 order, going forward, unless they are in full compliance by our July 1 order.

Male board member: Second.

GERALD LEBLANC: Second. On the motion.

MYRA BERLOFF: Could I ask a question?

KATE BERNIER [Administrative Coordinator] : Seven day basis? Seven days?

GERALD LEBLANC: Seven days.

MYRA BERLOFF : I’m in agreement with your motion – almost. I believe that if there is not full compliance by our new date that the fine should be fully retroactive. My concern is that it appears that there’s been some willful non-compliance here and I don’t want to eliminate any fine. If, in fact, by July first -- is that the date? -- if the sidewalks are fully compliant, which I’m hoping they are, I don’t want the City of Boston to have not been fined at all for their willful non-compliance since last November.

MARTIN EBEL: So what's your suggestion?

MYRA BERLOFF: I don't know.

DIANE MCLEOD: Why don't we revisit it on July 1?

MARTIN EBEL: In the event of the city does comply by the first – that's not the way to structure a motion.

KATE BERNIER: You can restructure.

Male board member: I think be objective of getting them to comply and getting the sidewalks to comply is really what’s the most important. And I think we've done that. I think they've got a very strong message that if they don’t do that that the fines are going to be in place from November.

MARTIN EBEL: [Unintelligible]

Same male board member: We could restructure that fine, also.

DIANE MCLEOD : Why don’t we amend the motion to $500 a day, for seven days, dating back to November 30 and we will revisit that the first meeting after July 1, as far as not alleviating fines but discussing what happens depending on everything being complete and in compliance.

MARTIN EBEL: And, conversely, at that point in time, if they're not in compliance, we can revisit whether we want to increase the fine. [Crosstalk]

MYRA BERLOFF [?] : So that's my friendly amendment.

MARTIN EBEL: I’m willing to accept that. And if I didn't say it as part of my motion, I’d like to also amend it myself to add that there being no evidence, this is not other than willful noncompliance.

GERALD LEBLANC: That was seconded by Doug. On the motion, All those in favor? Motion carries. Thank you.