Concrete Sidewalk Solution

Posted by John B. Kelly

Left: Amherst sidewalk with diagonal joint lines.
Photo: Rob DuBuske

This post is a follow-up to my posting of July 24, Concrete Sidewalk Primer

Some construction workers in Amherst told me about this new stretch of sidewalk, which is laid on a diagonal. I think the main joint line (which runs from the bottom right corner of the photo up and to the left) between the slabs of concrete is wider than necessary, but it was nevertheless a joy to drive over these lines on wheel at a time.

Last weekend, I got a chance to talk to a construction engineer who works for the Connecticut State highway department, and he was intrigued by the idea of diagonal joint lines.

Although not much involved with sidewalk construction these days, he was familiar with the common rationale that I've been hearing everywhere, namely that these "cracks" exist to guide beginning cracks in an invisible direction, thereby preserving the appearance of the sidewalk.

In other words, these "control joint lines" are installed for aesthetic reasons, and if they should inflict suffering on some pedestrians -- wheelchair users, specifically -- why not cut the lines at an angle?

What scares me is that maybe no one has ever asked wheelchair users what kind of sidewalk we would prefer. One word says it all: Smooth.

Political Candidates Speak Truth about Disability

Posted by John B. Kelly

No, not in Massachusetts, unfortunately. But it is happening in nearby New York, where gubernatorial candidate Eliot Spitzer recently called for the restoration of the post "state advocate for the disabled," previously cut "as a cost-savings measure."

David Patterson, who is running with Spitzer for lieutenant governor, is legally blind*(see bottom) and is actually, publicly committed to enforcing civil rights for disabled people. When will we hear a Massachusetts candidate say something like the following and mean it?

"The ADA is an unfinished agenda," said Paterson, the state Senate minority leader. "You can have an act on paper, but it isn't
trickling down to the streets."

"Let me assure you," Paterson said. "On Jan. 1 there will be a new
sheriff in town. And I will be his deputy. The sun will not set on
people with disabilities as long as we're there."

All is never rosy for people with disabilities, however. Spitzer has made a big deal out of promising to reduce the Medicaid budget, so our compatriots are a bit worried. We know what that is like in Massachusetts -- "sorry, no new leg for you," and "what's your problem? Only children need any of their back teeth."

Some advocates said they worry about a big issue in the campaign _ cutting the sprawling $40 billion Medicaid health care system many agree is rife with waste and fraud. Advocates said they are concerned that deep cuts in Medicaid called for by Spitzer, Democratic challenger Tom Suozzi, and Republican candidate John Faso will reduce home and outpatient services for the disabled and force more into residential care facilities.

"The disabilities community is deeply concerned about simplistic cuts," said Bruce Darling, an advocate in New York City.

Spitzer said Medicaid must be reduced because the state can't afford for it continue to grow. Spitzer's plan, however, mostly targets fraud and waste by providers. He said any changes in Medicaid for the needy and disabled won't undercut "the critical safety net" the system provides.

Yeah, we'll see about that. Notice that every candidate is for cutting the budget, which "many agree is rife with waste and fraud." This is what is known as "elite consensus," more often than not proved wrong later, after terrible damage has been done to vulnerable populations.

When a newspaper article uses the word "many" or "some" (Fox News' favorite way to interject its own right wing views) without identifying real-world people with real-world interests, watch out for "some" people pulling a fast one on "other", often powerless, people.

Cutting fraud and waste by providers and contractors seems like a worthy goal, but fraud and waste in the same quantities rarely turn out to be as locatable after candidates achieve office, so "cuts" start gouging the bodies of vulnerable people.

*Being "legally blind," by the way, is no guarantee at all of someone advocating for truth and justice. But it is true that people who identify with an oppressed group are more likely to reflect the group's views. Except those, of course, who don't.

16th anniversary of ADA passage

Posted by John B. Kelly

Today is the 16th anniversary of the signing of the Americans with Disabilities Act (ADA) by the first George Bush. Thanks to the hard work of innumerable activists, the law enjoyed strong bipartisan backing, but support was shallow. Despite the law's great promise, it stipulated little in the way of enforcement.

I am no ADA expert, but it has always seemed to me that enforcement was left to individuals seeking redress in federal court as a way to reassure powerful interests that they had little to worry about. In this way, the passage of the ADA represented more a gesture towards equality than determination to achieve it.

The act "took effect" in 1992, but disabled people still can't get a job, town and city streetscapes remain largely inaccessible, and getting in to and moving around within public accommodations are demoralizingly difficult.

A few years ago, I sued a couple of public accommodations (two retail stores) in federal court under the ADA, but it was not a satisfactory experience. For one thing, when settlements in these sorts of cases are finally reached, they routinely include confidentiality agreements preventing plaintiffs from discussing the case. So all that work, and the establishment never has to face the public over its discriminatory actions. I don't think I even have the legal right to tell you whom I sued. Not an effective way to organize for civil rights!

This is why I decided to turn to the Architectural Access Board for remedy. I thought that we could also make some headway politically, in the old-fashioned sense of gathering enough strength to have our vision of justice prevail. This was naïve thinking.

As an example, the AAB levied quite a large fine on the city of Boston on Monday, and took the rare step of issuing a press release. The Boston Globe put a small item in its "New England in Brief" section, just above paragraphs on indictments in a murder case, and a struggle over a widow's pension. No other media except Boston Comcast's Neighborhood Network News picked up the story at all.

Meanwhile, it's all Big Dig tunnels all the time. Tunnels are now closed for repairs, we hear, people are upset and inconvenienced. But disabled people live in this world 24/7. Huntington Avenue, once a perfectly functional concrete sidewalk, has been effectively closed off for three years now to satisfy the aesthetic cravings of some powerful institutions and their City Hall friends. So we risk our lives in the streets, change our routes, and feel demoralized. As Symphony Plaza resident Billie Tyler said, having smooth sidewalks "would be like living in another world."

Back to the ADA: I think people with disabilities should stop spending this anniversary giving out awards to organizations or businesses who do some good access deed, and rather start picking among the far more numerous access "worsts" for public recognition.

For "worst" response to disabled residents' request for street-level access, any town or city would have a difficult time matching Boston.

A complete chronology of the Huntington Avenue complaint coming soon.

Meanwhile, for some general information about people with disabilities, check out this U.S. Census fact sheet.

Massachusetts Architectural Access Board Levies Large Fine on City of Boston

Posted by John B. Kelly

A day to celebrate the possibilities of justice!

The all-brick sidewalk on Huntington Avenue has now been shown to be a complete failure. It has never been safe for pedestrian travel. It is time for the city to face this reality.

We call on Mayor Thomas M. Menino to do the right thing, sit down with residents with disabilities, and work out a plan so that everyone can enjoy -- safely -- the sidewalks of Huntington Avenue.

Enclosed below is the press release issued this afternoon by the Executive Office of Public Safety.

FOR IMMEDIATE RELEASE: July 25, 2006

CONTACT: Kelly Nantel, (617) 727-7775, x25542

ARCHITECTURAL ACCESS BOARD FINES CITY OF BOSTON $133,500
After nearly two years, city sidewalks remain out of compliance with regulations

Following almost two years of summons, motions, hearings and extensions, yesterday, July 24, 2006 the Architectual Access Board voted to levy retroactive fines of $500 per day from November 30, 2005 to present against the City of Boston for failing to maintain accessible sidewalks on Huntington Avenue. On August 13, 2004, the Board, whose authority flows from Massachusetts General Law chapter 22 Section 13a, received a complaint from Mr. John Kelly of the Neighborhood Access Group of Boston allegeding that the sidewalk on Huntington Avenue was in violation of the 2002 edition of 521 CMR Section 22.3.1. Specifically, the complaint alleged that the sidewalk had a cross slop of greater than 2%, changes in level greater than ¼”, surface warping and non-continuous planes, all of which make utilizing the sidewalk very difficult, especially for persons with disabilites. On January 11, 2005, the Board found in favor of the complaintant and ordered the City of Boston to bring the sidewalks into compliance by July 1, 2005.

“This continued disregard for the regulations is unacceptable,” said Thomas P. Hopkins, Executive Director of the Architectural Access Board. “The Board provided the City with ample time and opportunity to fix the problems and when it became clear that the work wasn’t being done satisfactorily, we were left with little choice but to levy significant fines. It is our expectation that the City of Boston will make the necessary repairs immediately.”

On July 21, 2006 a site inspection was conducted at the section of sidewalk in question. This sidewalk stretches from the intersection of Huntington Avenue and Massachusetts Ave, to slightly past 250 Huntington Avenue. Measurements were taken using a calibrated two-foot “SmartLevel” to determine compliance with the regulations and it was determined that the sidewalk was still out of compliance. The regulations, which have been in place since 1968, ensures increased accessibility for individuals in Massachusetts with mobility difficulties steming from aging or disabling conditions. For failing to comply with prior orders, the Board levied at total of $133,500 dollars in fines. The retroactive fines to date total $128,500 (275 days @500/day) plus a $5,000 fine for failing to maintain an accessible route during construction work on the Huntington Avenue sidewalk. The Board will continue to review this case at its October 16^th meeting.

###

Concrete Sidewalk Primer

Posted by John B. Kelly

Everyone knows about the "cracks" on concrete sidewalks ("step on a crack/break your mother's back"), but very few people seem to know that most of these "cracks" are unnecessary.

Concrete is usually laid in large slabs that are 15-20 yards long. Wooden forms are used to contain the liquid concrete as it is poured, both at each end and along the sides. These forms are then removed after the concrete dries.

The gaps between the concrete slabs are filled with some sort of compressible material to allow slabs to expand and contract with weather conditions.

I don't seem to have a good photograph handy of one of these joints, but if you look carefully, they are pretty obvious, because there is a strip of rubberized material or some kind of resin. The other cracks, meanwhile, are quite shallow.

All those other cracks? These are usually called "control joints" or "weak plane joints," and seem to exist primarily for aesthetic reasons. A best practices guide recommends:

control joints (cut lines) should be provided at intervals of about 1.2 to 2 m [every 4 to 6.5 feet] transversely along the length of the sidewalk. The joint is a saw cut or trowel cut about one quarter the depth of the slab that provides a weak plane in the slab where cracking can occur without marring the appearance of the sidewalk on the upper surface.

A center line is also recommended:

As most cracking occurs longitudinally along the centreline, providing a control joint along the centreline will provide a plane for controlled cracking to occur without marring the appearance of the surface.

I have looked at a lot of concrete sidewalk, and indeed some cracks do run along these control joints, but most do not. In the last few years, I have noticed that the cracks have been getting wider and wider. A construction worker told me that this was to facilitate digging up a square of concrete without damaging adjacent panels.

In other words, almost all the cracks on a sidewalk are there for looks and construction convenience. The problem is that these control joints can be very hard on wheelchair users. Because the joints are perpendicular to the path of travel ( i.e., crosswise), our front tires tend to hit the little mini ditches at the same time.

The feeling is a lot like being in a car going over an old concrete bridge (tha-thunk tha-thunk tha-thunk, etc.), but wheelchair suspensions are closer to Conestoga wagons them a Lexis. And for people who are subject to back, neck, head or full body pain, these aesthetic little cracks are a nightmare.

Here is an example of how bad things have gotten. Last year, I led a little Saturday tour through the Fenway, and our group went up Gainsborough Street. Now Gainsborough is pretty much hopeless for a lot of reasons, primarily because of a terribly steep crossslope, but the new concrete laid in the last few years also has incredibly wide control joints.


photo: Gary Devino

Zachary Kern of the West Fenway came with us, and above is a picture of his front castor wheel entirely contained within a center line control joint.

And below is a piece of new sidewalk on Westland Avenue, with a ruler showing how wide these cracks have become.


In my next installment, I will show a very simple solution to this problem.

AAB to release decision Tuesday

Posted by John B. Kelly

Still haven't heard about the AAB's meeting today regarding the city of Boston's unwillingness/inability to bring Huntington Avenue into compliance.

Will post when I have the information.

State Board to Determine City's Fate Re: Huntington Avenue Sidewalk

Posted by John B. Kelly

After the city was certified to be noncompliant on the Huntington Avenue sidewalk from the corner of Massachusetts Avenue to Betty's diner, the Massachusetts Architectural Access Board will decide tomorrow how much of a fine to levy.

The board already imposed a fine of $500 per day since November 30, 2005, one of a group of missed deadlines.

I wrote this letter to the board:

To the Massachusetts Architectural Access Board:

May this be the last letter you receive regarding this stretch of sidewalk on Huntington Avenue.

It is now incontrovertible that the city has been out-of-compliance, without justification, since July 1, 2005.

It is as if the city has been conducting an experiment to discover how much contempt it can heap upon people with disabilities and the state board commissioned to protect us; how many legalistic absurdities it can put forward; how many deadlines it can miss without excuse; how many variances it can fail to fill out properly; how many hearings it can come to completely unprepared to answer even the most basic of questions; and how many times it can attest -- falsely -- that the sidewalk is in compliance, and yet suffer no penalty of law.

This experiment has gone on far too long. Hundreds and hundreds of hours have been expended by people with disabilities trying to secure justice. And still, people suffer because of this stretch of sidewalk. People are in the streets risking their lives because of the deliberate actions of city officials. Someone could easily have been killed by now.

Please: credit our suffering, respect our efforts, uphold the law, and penalize this scofflaw to the limit of the law.

Years of city negligence along Huntington Avenue

"I don't have an answer to that."

-- DPW official on how metal ridge of NStar vault could go unrepaired for years

Posted by John B. Kelly

Eileen Brewster lives on Ruggles Street, and since the bricks were laid on Huntington in 2003-2004, hasn't been able to use the sidewalk, either going in the street with a friend or going by a longer route.

But it was this raised metal ridge, part of what is called an "NStar vault," that shredded her front wheelchair tire and landed her on the sidewalk about five years ago -- before the bricks were even laid.

Eileen Brewster demonstrates where her wheelchair tires were destroyed on Huntington Avenue. Photo: Jacqueline O'Sullivan

And here is a close-up of the raised metal:

Sharp metal ridge on Huntington Ave. is 1 inch high. Photo: Jacqueline O'Sullivan

That means that construction supervisors and laborers back in 2003-2004 did not bother to ask NStar to lower the vault, so that it would be more even with the surrounding sidewalk. And as you can see, people have no choice but to traverse it.

It also means that as city officials looked over the sidewalk in 2005, no one thought to call up NStar either. After all, it wasn't cited in the original NAG-BCIL complaint.

Huntington Avenue near Pizzeria Uno. Photo: Jacqueline O'Sullivan

Eileen said taking action to have the vault lowered (it might involve a telephone call!) "would make too much sense. Someone would have to do some thinking."

As the DPW official said, "I don't have an answer to that."

Cutting to the Chase

AAB compliance officer Christopher Walker's notepad in front of level showing 3.3% crossslope. Click on photo for larger picture. Photo: Rob DuBuske

STEPHEN SPINETTO, Boston Disabilities Commissioner: Look. Let’s just cut to the chase. OK.

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

-- AAB hearing, May 8, 2006.

Posted by John B. Kelly

It seems possible that the chase -- almost two years and at least four deadlines in -- may finally be about to be cut to. Massachusetts Architectural Access Board (AAB) compliance officer Christopher Walker came Friday morning to inspect crossslopes on the controversial all-brick sidewalk on Huntington Ave, which has been the subject of a NAG and BCIL complaint since August 2004. (Sidewalk runs from the intersection with Mass Ave., just above the entrance to the Green Line and Utrecht Art Supplies, to the front of Betty's Diner).

What compliance officer Walker found is without doubt enough to "put the city away," as it were. One day after the city's final deadline passed to bring all crossslopes under 2%, the very first slope measured by the Smart Level Pro topped 4%. As far as I was concerned, that was end of the story: the city is proven guilty of "willful noncompliance," well deserving of a very large fine.

The board meets Monday, July 24, to hear Walker's report, read the letters of concerned citizens, and decide how best to achieve safe access to the sidewalk for people with disabilities . It was already disgusted enough with the city's shenanigans in May to assess a fine of $500 per day since November 30, 2005 (the missed deadline-before-last), with any reconsideration pending full compliance by July 1, which was then extended one last time to July 20, yesterday.

Given the city's demonstrated record of contempt for the complaint process (it didn't even show up at the first hearing in January 2005), it's absurd legalistic arguments (it tried to argue that it wasn't responsible for its own sidewalk), its lazy failure even to properly fill out a variance request, and its repeated, false, assertions of compliance, it must pay a heavy price.

Even though a cast of characters has participated in this tragedy, the city of Boston functions as the legal "person" who owns the sidewalk, subject to the same laws as everyone else. So this "person" known as the city of Boston chose to install a sidewalk surface it knew to be both expensive and dangerous, chose to disregard its responsibility to inspect alterations to its property, and chose to resist through delay and legalistic maneuver every request and order given by the agency entrusted with ensuring that paths of travel do not imperil public safety.

Then, after being found in violation of state law not just once, or even twice, but three times, this "person," this scofflaw, ignored heartfelt request after request from the people whom the bricks were daily torturing, that the city please take the bricks up.

No, instead the city sent groups of workers out three separate times, and three times it asserted, falsely as it turned out, that it was in compliance with the law. Now what should be done about a person such as this, a person who has been over the past two years knowingly and willfully endangering the most vulnerable portion of the citizenry -- people who are elderly and disabled?

I will urge the Massachusetts Architectural Access Board to commence penalizing the city since its very first missed deadline, way back in July 2005. Otherwise, the city will continue to treat "deadlines" as optional at best, hollow threats at worst.

The board should increase the fine from $500 per day to $1000 per day, and going forward, it should assess the city $1000 per day per crossslope violation, until those violations are corrected.

If the only way to convince some people to obey the law is by punishing them when they don't, punishment must be great enough to compel good behavior in the future.

It's called "personal responsibility."

Find the Missing Brick Contest!

Posted by John B. Kelly

A favorite little past time of mine has become "Visiting the Missing Brick." I'm not going to tell you where this non-brick is, except that it is on Huntington Avenue, is on a well-traveled stretch of sidewalk, is easily visible, and has been missing since early May.

First person to accurately identify the missing brick will receive some sort of prize as yet undetermined!


Photo: David Heikkinen

Symphony Hall "Access Education Day"

Posted by John B. Kelly

Our Symphony Hall "Access Education Day" went very well, although I did not print enough fliers. We were reminded of why he we were out there when we saw a man zip by in a wheelchair, right in Massachusetts Avenue. This should be a scandal! Man risks life to go somewhere, because a city and an institution can't be bothered to ensure access.


All photographs by David Heikkinen

We had a good group of people hanging posters,

Storyboards by Stacey Berloff and Jack Grieco

a very good number of citizens reading the posters,


people passing out leaflets,

Pam Beeler and Matti Kniva Spencer hand out flyers


John Healy (standing) and Richard Nurt handing out flyers neart he ramp from hell, which almost caused Richard to slide all the way out of his chair a few years ago.

people holding signs, chalking the sidewalks, and of course, hanging out.


Passersby had a choice of reading posters on one side, and accepting a flyer on the other side.



People with disabilities we know almost always come by -- today it was Brenda Clark on her way home from work,


Brenda Clark (seated) talks with a friend

John Winske of the Disability Policy Consortium on his way to and from Fenway Park in a quest for tickets, and Steve Dolan, Jack Grieco, and Eric McCall returning from some adventure or other.

I usually meet someone new, and today it was Bruce of Symphony Plaza, who as a scooter user naturally hates bricks and all uneven sidewalks.

Hopefully more pictures soon.

Symphony Hall perimeter access

Posted by John B. Kelly

I scouted out Symphony Hall last night to check out the access along the three sides with sidewalks. It is almost always the case that access is worse than I even expected.
First, I looked at the sidewalk along St. Stephen Street, which I don't think I had ever been on. I realized why when my assistant David and I found a cross slope of 4.9%.


That is way too steep for comfortable wheelchair travel. And in case any wheelchair user was intrepid enough to try to use the sidewalk, a wide gash made the BSO parking lot driveway uncrossable.


Although the sidewalk in front of Symphony Hall along Massachusetts Avenue has always terrified me -- it is incredibly sloped towards the street -- I had never measured it. In front of one set of stairs, 9.2%, in front of the other, 8.7%. Legal limit = 2%.




That means that the cross slope of this sidewalk is steeper than the maximum allowed slope of a ramp. In other words, this sidewalk is too dangerous to move any direction in.

Most brick sidewalks will yield up one of its pavers on a regular basis (abducted for shelving?). But I was disappointed that the missing brick I saw last week near the Huntington Avenue entrance had been replaced.
But we did find a new hole, right next to a parked car. I can imagine someone getting out of the rear seat, and saying goodbye to their ankle for a long time. Of course this is illegal -- you're not allowed to just drill a hole in a sidewalk and walk away without making it safe again.

"Access Education Day" 3: Symphony Hall out of tune with neighborhood

Posted by John B. Kelly

In its third "Access Education Day" in as many weeks, Neighborhood Access Group will be examining the private side of the public-private partnership between the city of Boston and Symphony Hall.

On Wednesday, July 19, from 4:30 p.m.-6 p.m., we will be "showing off" the terrible access in front of Symphony Hall, displaying our storyboards, and passing out information about the Symphony's poor record of neighborliness to its elderly and disabled neighbors.

We will be talking about how City-Symphony cooperation has created a design for the Symphony Area Streetscape Project that really "sticks it to us." The city will use precious funds to install fancy plastic crosswalks with "celebratory motifs" like musical notes. This represents another blurring of the line between public and private space, whereby the aesthetic whims of the powerful and the connected take precedence over the public safety of the people who actually live in the neighborhood.

In other words, these characters are engaging in active discrimination against a vulnerable population.

We have told the city over and over again that Duratherm plastic crosswalks -- they now make crossing much of Huntington Avenue a nightmare -- pose a public safety danger for elderly people and people with disabilities. Many wheelchair users say "they are as bad as the brick."

These crosswalks are cunningly designed do not violate state or federal law, but create such a fine vibration for users of wheelchairs, scooters and walkers that they are just as bad as the brick sidewalks. They shake a lot of us like a kernel of corn in a corn popper.

No brick will be installed during this project (rather, a fancy concrete with some sort of granite "stamp" will be installed), but at the same time, very little brick will be replaced-- a couple of feet past the Eliot Cohen wing entrance on the Symphony side of Huntington Avenue, and just to the driveway on the Symphony Plaza West side of Huntington. After that, people with disabilities are left to fend for themselves on one of the worst sidewalks in the city.

We have implored the city to recognize its mistake with the terrible City Hall pavers on Huntington Avenue, and simply replace them with concrete, but the city insists on torturing us by leaving in the same terrible bricks

Channel 5 Does Access Story

Posted by John B. Kelly

WCVB channel 5 last night ran an investigative story on access in Boston, focusing in on the brick issue. The piece features reporter Sean Kelly, Disability Commissioner Stephen Spinetto, and activists John Kelly and Liz Casey.

Please go check it out!

The video and approximate transcript is here.
And Producer Lynn Kellermann's notes on the story arc here.

And, guess what, news stations really do read e-mail comments from viewers. So please follow this link to the little form.

And if you are really motivated, please drop me a line to let me know that you sent a letter.

Sunday 11 p.m., Channel 5 to Run Access Story

Posted by John B. Kelly

After a few weeks of work on a story about access to stores and sidewalks on Newbury Street, Huntington Avenue, and Roslindale Square, WCVB channel 5 will be running the story Sunday night at 11.

Roslindale's Liz Casey, Disabilities Commissioners Stephen Spinetto, and I are featured.

Responses to the station really do make a difference, or send your comments to me .

It's Everyday, People

Posted by John B. Kelly

It really seems to happen just about every day. I go outside and there is some egregious violation of my basic civil rights -- right there, right before me. Meanwhile, "normal" everyday life just goes on as if nothing is wrong.

Today, I went to the dentist, but my path of travel had already been chosen for me, by Riley Brothers, or the construction workers using a Riley Brothers truck. This is what I saw, looking up Westland Avenue.


All photographs by Rob DuBuske (all formatting clumsiness is mine)

No big deal, just your everyday backhoe completely obstructing a sidewalk. Now it is the law (521 CMR 3.10) that during any construction project, accessible pedestrian travel must be possible. But it is one of those laws, the kind of laws that aren't enforced and no one even notices that maybe they should be. Except, of course, the people whose interests the law is designed to protect.


A wheelchair coming upon this scene would either have to "make a scene" or, more likely, turn around, go back to the corner, cross over, and go up the other side of the street.


I like backhoes, I really do. I think they are very cool machines. It's just that I really do have the civil right to use that sidewalk.
If a bigger backhoe were to sit in the middle of Westland Avenue and simply block all passage by automobiles for say, six hours, a few more people than me and my compatriots might notice.

More able pedestrians, meanwhile, dutifully walk in the street, around the orange cones the workers put out, and back onto the sidewalk.

It does look like the backhoe might just scoop up this young woman, who actually is in quite a bit of danger from passing automobiles. And if one were to hit her, there would be hell to pay.

Riley Brothers has a part in this somewhere, but for all I know the backhoe is owned and operated by another contractor, whose name is nowhere visible at the construction scene.

Another NAG education Day: Friday, July 14, 4:30 p.m.

Posted by John B. Kelly

NAG's second "Access Education Day" will take place on Friday, July 14, 4:30 p.m.-6 p.m., in front of the Massachusetts Avenue Orange line T station, which is between St. Botolph St. and Columbus Avenue.. We have decided to try to do an event every week. Although this week it will be Friday, usually we will gather on Wednesdays.

Last week we showed off posters and handed out brochures and fliers at the corner of Massachusetts/Huntington Avenue's.

This week we will continue talking about how the Menino administration keeps taking our civil rights away. It doesn't care about the quality of our sidewalks, the curb cuts or ramps that join the sidewalks with the streets, and it keeps wasting money on really expensive and dangerous brick. We have spent the last two years filing complaints against the city about the horrible brick sidewalk on Huntington Avenue, but it refuses to make it smooth.

The city has now failed to respond to 18 months worth of orders from the Massachusetts Architectural Access Board to make the sidewalk accessible. As a first step towards disciplining a careless city, the board yesterday assessed a fine of $5,000 for failing to provide temporary passageway around the worksite on Huntington Avenue in June. More on this in a future post.

Meanwhile, the city has been granted an undeserved an additional 11 days to bring the sidewalk into compliance. It will not be able to.

As usual, we will hang up "storyboards" about people's personal experience with brick. Below is an example, from Symphony Plaza resident Jack Grieco.

Access education Day wrap up -- revised

Posted by John B. Kelly

Besides a couple of grammar mistakes, most of the revisions are simply the addition of pictures, a process I am still very slow at.

Almost 15 NAG members, helpers and friends gathered at the corner of Massachusetts and Huntington Avenues this afternoon during NAG's "Access Education Day." It was a more relaxed sort of event, with passersby winding their way through the various staging points for our foamboard and cardboard posters. As we watched the scene of people reading our boards and taking fliers, some of us chatted, some handed out fliers and brochures, and everyone read some of the exhibits.

(l-r) John Kelly, James Magee, and Pam Beeler. Gladys stands in the background


Gladys takes a break from handing out flyers and brochures


Pam Beeler reads the storyboard for Billie Tyler

Our posters hung from poles, clocks, and Eileen Brewster's even rested on a tree branch. It felt almost like an art exhibit or "installation," with the posters scattered about the corner and down Huntington Avenue.

A woman who had just translated posters into Russian for a friend moves on

The first thing my helper Rob DuBuske and I did was hunt down some violations, made easy by the leftover chalk marks from Wednesday evening. We just took out the trusty Smart Level, with its electronic readout, and scoured around for the top brick of one of the little mounds that are always getting pushed up. Down went the Smart Level on the little summit, and with a slide one way or the other, voilà: access violation. Rob colored in the profiles made by the level, and scribbled out in huge numbers the cross slope.

Jodi Gaulin walks past chalk marking violations

Five or so presented themselves immediately in the very first stretch of sidewalk, along the low retaining wall encircling Utrecht Art Supplies and the Green Line station. A few egregious changes of level were handily clustered in a fresh-worked brick patch just past the little driveway heading towards the Huntington Theatre, so we marked them up too.


Rob wrote explanations on the sidewalk like "Anything Over 2% Is Illegal."

As more and more Naggers arrived, NAG brochures and fliers got handed out, and the posters got hung all over the place. A mix of old and new fliers got stuffed in NAG brochures, and seemed to get the basic message out about what we are trying to do.


Eileen Brewster has a brochure waiting for the next passerby


Karen Schneiderman engages a passerby


Barbara passes a flyer to a car passenger


Maureen Cancemi's storyboard over a poster detailing city neglect


Northeastern student reads brochure given her by John Healy


Announcement-style posters explained what we were doing

It was gratifying to see people leaning over a poster board and reading about what Jack Grieco, Maureen Cancemi, or Matti Kniva Spencer had to say about bricks and the civil rights they obstruct.

Perhaps some second thoughts about those high heels?



Cell phone user gets some reading in

No media came, which I guess is to be expected, both because I did not work the press very hard and the late hour of the press release. And of course, people with disabilities just aren't news when we are acting in our own interests.

Lately I've been learning to say "you have to live a long time to fight City Hall," because no matter how clear and unnecessary the violation of our civil rights, we have yet to find the allies or brilliant tactic that would make our demands righteous and unstoppable.

In the meantime, we really have a lot of educating to do. A lot of people really think, without any ill motives, that brick sidewalks are just wonderful and the more of them the better. We reached a good number of people yesterday, but we need to do this on a regular basis.

What makes it hard, however, is that we are already impatient, because it took us so long to get frustrated enough to admit that unless we really took action, nothing would change.

Thanks to the following people for making it all happen: Pam Beeler, Eileen Brewster, John Healy, Billie Tyler, Jack Grieco, Maureen Cancemi, Karen Schneiderman and James Magee from NAG , Ann Hershfang from WalkBoston, Joyce Foster from FCDC, Lisa Skayne (my nurse) from Boston Community Medical Group, Jim Kinsellagh of Brookline, my helpers Rob DuBuske and Jodi Gaulin, and Barbara and Gladys who came with Eileen Brewster.

NAG's Access Education Day, 3-6 P.M. Today!

Please come join people with disabilities from the Symphony--Fenway neighborhood-- TODAY -- at the corner of Massachusetts and Huntington Avenue's, between 3:00 p.m. and 6:00 p.m.

See for yourself how the city of Boston treats residents with disabilities with callous disregard.

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.

A Sorry Picture of Hemenway Street

Posted by John B. Kelly

All Photographs by David Heikkinen

It was so beautiful out today, I just kept having to go out, and out again. After my helper David arrived in the afternoon, we took a walk up Hemenway Street from Gainsborough all the way to Boylston Street. Even if I think I know a street well, there are always new violations to greet my eye.
Here is my first view of Hemenway after cutting through an alley.


When I want to go by Gainsborough St. to Huntington Avenue, I have to shoot across Hemenway Street right here, and turn right up Gainsborough St. -- in the middle of the road. The ramp in the middle of the picture leads nowhere. It is an orphan ramp -- no crosswalk and no ramp on the other side of the street.
In fact, there are no crosswalks between Westland Avenue and the Northeastern crosswalk at Forsyth Street.
This ramp is also way too steep. When Hemenway was resurfaced two years ago, Boston should have upgraded these ramps.

The south side of Gainsborough/Hemenway, with a 5.7% crossslope. That both sidewalks are unbearably dangerous is the reason that I and so many other people just stay in the street on Gainsborough. At least it is a one-way street, so we always know where the traffic is coming from.



Here is the other corner of Hemenway Street and Gainsborough St., also lacking a ramp where it should be, but with an orphan ramp that lacks a crosswalk, and has no opposite ramp on the other side of Hemenway to connect with. So for a wheelchair user to cross Gainsborough St., she or he must swerve out into Hemenway Street first. Dangerous!

Please click on the photograph for a larger version, and I hope you can see that the cross slope is 4.2%, twice the legal maximum. The sidewalk is so tilted that many people in wheelchairs simply can't use it safely.

Channel 5 Does the MFA Cobblestone Sidewalk

Posted by John B. Kelly

This was my second meeting with Channel 5 producer Lynn Kellermann and cameraman Steve, in which I bumped up and down the notorious sidewalk in front of the Museum Of Fine Arts with a camera attached to my wheelchair in various configurations.

All Photographs by Rob DuBuske


WCVB Channel 5 cameraman Steve starts clamping on a camera, as producer Lynn Kellermann and John Kelly look on.


Getting it right


Check out these cobblestones!


Steve mounts the camera on a bar off my lap tray


My view of the camera


Steve shows Lynn the results


A look at the Duratherm crosswalks, with patches already disappearing.


Naturally, I got a headache from doing this, but it was worth it.

WCVB Channel 5 To Do Story on Lack of Access

Posted by John B. Kelly

Producer Lynn Kellerman from Channel 5 called me a few weeks ago after getting my name from reporter Kelly Tuthill, who came out to the Fenway in January to film Alyson Perry and me trying to navigate in the snow. Lynn said that she was interested in doing a story on the lack of access to stores on Newberry Street, what with all the stairs and everything.

Like Kelly Tuthill, who was appalled at how snowy sidewalks stymied her stroller, Kellerman came to our idea through a woman with a stroller struggling with the Newberry Street scene.

She explored where I stood on the access issue, whether I could see both sides or did I think that it should be made completely accessible -- whatever the cost. Answering that kind of hypothetical question -- yeah, like Newberry Street is suddenly going to install 70 mini-elevators and artfully designed elegant ramps -- is so far from disabled people's daily experience, so I said that Newberry Street is the least of our problems.

I told her that our daily concerns involve developments in our own neighborhoods, like the brick on Huntington Avenue that the city refuses to discuss, or Duratherm, the decorative crosswalk from hell which the Transportation Department wants to ram down our throats on behalf of the visual pleasure of Symphony Hall patrons.

So we agreed to take a look at both locations, starting with Newberry Street. We met there one day last week, joined by reporter Sean Kelly and cameraman Steve (last name to be added when I get it), and my helper Rob DuBuske. It was typical that, on our way over there, Rob and I would run into an access dead end. Work on the side of the Virgin music building pushed access out into the street, which was fine until we got to the Newberry Street sidewalk. Rob had to move the cone and tape so I could get up here:



Lynn set the scenes, Sean interviewed me, and Steve looked for good shots. Of course he got some stairs going up, some going down, but also the amazingly dangerous tilt or cross slope of the upper Newberry sidewalk. The sidewalk is such a mess that there is a curb ramp right there in the middle of the sidewalk, but its cross slope was almost 12% -- quite a bit higher than the limit of 2%!

I said the usual things about the lack of access in Boston, and pointed out how even the new sidewalks were terrible because the "cracks" between the panels were so wide and deep. After Sean had to depart for another interview, and we had no time to get over to Huntington Avenue, I showed Steve and Lynn how I use the middle of Exeter Street as one of my main routes on the way to the bricks in front of the Boston public Library.



Steve, who had seen "Murderball", was dissatisfied with his ability to capture by long shot how bumpy the sidewalks were for me, and wanted to strap a camera to my wheelchair for a more visceral effect. That led to our second appointment, which after thunderstorms rained us out last week, took place yesterday.