City flouts the ADA at Symphony Hall

Posted by John B. Kelly


In 2006, Symphony Hall moved its box office down to ground level, thereby creating ground-level access.When the sidewalk dug up during construction was put back down, however, I was able to file a complaint because the repaired sidewalk did not comply with access regulations.

The Massachusetts Architectural Access Board ordered that the entire sidewalk be made accessible by July 1, 2008. But the city, which has been waiting on some federal money first announced in 2005 (one of those notorious ear marks, this one engineered by Joe Moakley on behalf of Symphony Hall) has continually asked for an extension, either to 2010 or 2009.

Each time, aware that this sidewalk is one of the crucial passageways for people with disabilities in the city of Boston, the AAB has denied the city request.

Now the July 1 deadline has passed, and the sidewalk remains untouched, pristine in its dangerousness. We did some leafleting at this spot two years ago, and found that the slant or "cross slope" of the sidewalk in front of the stairs (every disabled person in Boston knows this slanted sidewalk all too well) was 9.2%. The above photograph shows what people feel compelled to do in order to avoid the sidewalk. This wheelchair user is taking up the right lane of a very narrow Massachusetts Avenue directly in front of Symphony Hall. He is risking his life in order to get a smoother ride.

Meanwhile, because of city of Boston negligence, contempt, or incompetence, people with disabilities are being discriminated against. The endangerment of people of disabilities on the sidewalk, despite repeated orders to make it safe, was one of the main reasons I thought NAG should not participate in the ADA anniversary event with the city.

Mayoral Leadership Challenge: Respect the ADA, Obey the AAB.

Posted by John B. Kelly

Following is a press statement released by Neighborhood Access Group to coincide with Mayor Thomas M. Menino's announcement due Friday, July 25 of a curb cut repair program.

If you keep scrolling down after this entry, you will run into articles about Huntington Avenue, NAG letters to Mayor Menino, and a petition.

Statement For Immediate Release
July 25, 2008

Mayoral Leadership Challenge: Respect the ADA, Obey the AAB.

"Public safety should trump aesthetics every time."

When Mayor Thomas M. Menino observes the 18th anniversary of the signing of the Americans with Disabilities Act (ADA) Friday by announcing a curbcut repair program, not present will be the grassroots group of disabled people who first raised access as a civil rights and public safety issue. Neighborhood Access Group (NAG), which has been featured in a score of news pieces on access over the last five years, says it cannot celebrate the landmark civil rights law for people with disabilities while Boston continues to disregard the orders and fines of the leading enforcer of ADA rights in the Commonwealth, the Massachusetts Architectural Access Board (AAB).

The Access Board, whose access regulations mirror the ADA, ordered the city in 2005 to repair the dangerously noncompliant all-brick sidewalk on Huntington Avenue. After city appeals were twice rejected by Suffolk Superior Court, the city's neglect was met in 2006 with a Board fine of $500 per day, retroactive to November, 2005. Even after the administration received a demand for payment last April, it would not budge. The unpaid fine, imposed for "willful noncompliance," has soared to $490,000.

"The mayor is certainly ignoring the fine," said NAG member Eileen Brewster of Ruggles. "I say: respect the ADA; respect the AAB." Brewster, who moved into the area for its access, has been unable to ride on Huntington Avenue since the bumpy bricks were laid in 2003-2004 over the protests of disabled residents.

"We just cannot in good conscience celebrate the ADA with an administration that has been willfully violating its most basic mandate for years," said NAG founder John Kelly. "The city doesn't even have a plan to make Huntington Avenue safe again."

The two plans that the administration have floated, driving markers into the bricks and grinding them down, have been rejected as discriminatory and unrealistic. Access advocates have been calling on the city for years to restore a concrete path of travel down the avenue. Residents report that the bricks cause injury, pain, muscle spasms, vision problems, incontinence, loss of wheelchair control, and dangerous falls for cane users and elderly alike. Bricks are also extremely slippery when wet and icy, frequently go missing, and cost four times as much to install and much more to maintain than simple concrete. The city now says that it will entirely reconstruct the avenue, but "can make no guarantees" regarding its surface.

"We invite the mayor to come down to Huntington Avenue and see what we experience," said Symphony Plaza resident Pam Beeler. "It was a fall on bricks that put me in this wheelchair."

The city, which has been deluged with hundreds of AAB complaints filed by NAG and the Disability Policy Consortium, continues to miss board deadlines. The dangerously slanted sidewalk in front of Symphony Hall on Massachusetts Avenue was ordered repaired by July 1, but inaction has led to the scheduling of an AAB hearing for October. And despite assertions of improved procedures, curb cut and sidewalk construction continues to be done incorrectly and certified falsely as compliant.

"The city says that it has learned from its mistakes and wants to work together with advocates," Kelly said. "We have told them time and again that we need a concrete solution on Huntington Avenue, with bricks along the curb edge for people who like to look at bricks."

City Councilor Michael Ross has been proposing this compromise for years, but has run into opposition from the institutions along the avenue, which sponsored and helped pay for the brick sidewalk. The Fenway Alliance, the consortium of institutions that line the avenue, have claimed as its greatest achievement what it calls the "beautification" of Huntington Avenue. Northeastern University has been installing the bricks everywhere on its campus.

"We challenge the mayor to show leadership," Kelly said. "It's one thing to allocate extra money for curb cuts, it's another thing to go up against powerful interests like Northeastern University and the Fenway Alliance and declare once and for all that the safety of all is more important than the aesthetic preferences of the well-connected few. Public safety should trump aesthetics every time."



Contact: John Kelly
Neighborhood Access Group
Phone: 617-536-5140
Email: John.B.Kelly@verizon.net

State Agency Demands Boston Payment of $438,500

Posted by John B. Kelly

In April, the Massachusetts Architectural Access Board sent a demand letter to the city of Boston. Citing the city for "willful noncompliance" with its regulations, the Access Board demanded payment of more than $400,000.

The city still hasn't paid its fine, now approaching $500,000.

I filed the original complaint in August 2004. The entire sidewalk is completely off-limits to people with disabilities, because the all-brick surface is so unbearably uneven.


Honorable Mayor
Thomas M. Menino April 14, 2008
Boston City Hall
One City Hall Plaza
Boston, MA 02201

Re: Huntington Ave between Mass Ave and Gainsboro Street, Boston, MA Docket # C04-067

Dear Mayor Menino,

I am writing to you today on behalf of the Architectural Access Board regarding the above referenced sidewalk location.

The Board held a fine hearing regarding Hunting Avenue complaint docket # C04-067, on May 9, 2006. At that hearing the Board voted to impose fines of $500.00 dollars per day beginning November 30, 2005. (Decision enclosed)

The Board determined that the City of Boston had shown willful non-compliance, without justification for failing to comply with the Boards order to correct cross slope violations along Huntington Avenue.

According to our records the sidewalk slopes are still non compliant and no documentation of the sidewalks having been corrected to the Boards satisfaction has been received.

To Date the fines have accrued as described below:

2005 - 32 days at 500.00 per day
2006 - 365 days at 500.00 per day
2007 - 365 days at 500.00 per day
2008 - 105 days at 500.00 per day

Total: $433,500, plus a one time fine of $5000.00 for failure to provide an accessible route around work that was attempted to correct the violations at Huntington Ave. (see 521 CMR Section 3.10)

As of this date, the total Due to the Commonwealth of Massachusetts- $438,500

On November 26, 2007, the Honorable Judge Troy in Superior Court Civil Action 2006-03764 DENIED the City of Boston's motion for Judgement on the Pleadings and AFFIRMED the August 8, 2006 Decision of the State Architectural Access Board (Decision enclosed).

On March 24, 2008 at the Boards regularly scheduled meeting the Board unanimously voted to send to the City of Boston a demand for payment of the fines that have accrued as of April 14, 2008.

Therefore the Board demands that you pay to the Commonwealth the sum of $438,500 and that a plan for compliance to correct the cross slope violations on Huntington Avenue be submitted forthwith. Please be advised that the fines will continue to accrue, until the violations at this location are brought into compliance with the Boards regulations 521 CMR.

If you have any questions, please call our office.

Sincerely,

Gerald LeBlanc
Chairman, Architectural Access Board.

Cc: Local Building Inspector
Commission Disability
Independent Living Center
Complainant
William Sinnott, Corporation Counsel

Boston Plan to Fix Huntington Bricks DOA

Posted by John Kelly

A little more than one year after taking over as chief of public works and transportation for the city of Boston, Dennis Royer finally made a proposal to the Architectural Access Board on how to bring the brick sidewalks on Huntington Avenue into compliance.

The plan is so bizarre, so discriminatory, and so insulting that it has to be read to be believed.

Basically, what the city proposes is to create a "special" 4 foot wide path of travel for people with disabilities, which would be marked off from the rest of the sidewalk by markers driven into the bricks. The city would make this 4 foot wide path of travel -- and only this narrow path of travel -- technically compliant by grinding down and resetting the bricks. The rest of the sidewalk would be left in the condition it is now, meaning inaccessible.

This path of travel would be a lot like a flat terrace on a hillside. And just like on that hillside, there would be an abrupt change of level between the higher elevation still at an angle and the flat path itself. This would mean any attempt to leave the path of travel to head towards a restaurant, store, or theater would encounter an immediately higher and tilted surface.

People who are blind or visually impaired would be at an extreme disadvantage, because there would be no way to know where the path of travel is. And if the markers were raised off the bricks, then we would have an incredible tripping hazard for every pedestrian. What were they thinking?

This is a real step backward for the city of Boston, and for Dennis Royer, who just two weeks ago told the Boston Herald that

“Mayor Menino directed my department to make the accessability of Huntington Avenue a top priority,” said Dennis Royer, chief of public works and transportation for the city. “We are committed to making that sidewalk accessible.”

Unfortunately for people with disabilities, "accessible" doesn't necessarily mean usable. If a surface material is not actively forbidden by the Americans with Disabilities Act or the Commonwealth's access codes, and if that material is laid in such a way that it "complies", then officials will say that the surface is "accessible." They will say it even if hundreds of people with disabilities are shouting that the surface tortures us. The Duratherm crosswalks on Huntington Avenue provide a perfect example: they feel like rumble strips under our wheelchairs, but because their change of level never reaches 1/4", they are classified as "accessible."

Back to the "plan": and what is going on with the MBTA? Could Commissioner Thomas Grabauskas actually have agreed to such a plan?

I paste in the letter from the city below, and after that the response from the Architectural Access Board. I bolded some of the text in Royer's letter for emphasis.

Dennis Royer did not send a letter to the Architectural Access Board itself, but chose to go over its head to the Commissioner of Public Safety, Thomas Gatzunis. The letter was dated October 3, received by the access board on October 12.

Commissioner Thomas Gatzunis

Department of Public Safety

One Ashburton Place, RM 1301

Dear Commissioner Gatzunis:

Re: Huntington Avenue- brick compliance issue.

As you are well aware from our meeting on September 5^th of this year, the City of Boston is attempting to comply with the Architectural Access Board (AAB) in regards to the pathway that needs to be provided for handicap accessibility. After discussions with the Massachusetts Bay Transportation Authority (MBTA), they have committed to returning Huntington Avenue into compliance regarding the cross slope by either polishing areas or resetting bricks that do not conform to the measurements taken by the 2 foot "smart level".

After many site visits, we have developed a plan that will bring a path into compliance on Huntington Avenue. Our plan will be to delineate a 48" path, using markers which will be driven into the bricks. This delineation will clearly show the path of travel and will alleviate the issue of cross slope on the sidewalks. By creating a distinguished path of travel, we can create a safe and compliant path for all.

I have determined that this is the course the City of Boston will take to create proper accessibility for all. I am respectfully requesting that you contact me immediately if you feel in any matter that this plan of action does not satisfy the request of the AAB. As you are well aware, time is of the essence as another construction season comes to an end and the City of Boston continues to receive fines due to this issue.

I look forward hearing from you.

Dennis Royer

It didn't take the access board long to consider the "plan." If the plan was sincere, it betrays a shocking ignorance about what accessibility is all about. If people with disabilities are going to have any opportunity to participate in society alongside everyone else, then new construction has to welcome us. Separate and unequal is not welcoming.

RE: Huntington Avenue-Brick Compliance issue Docket # C04-067, V05-207 and V06-046

Dear Chief Royer;

I am writing you today on behalf of the Architectural Access Board. On Monday October 15, 2007, at its regularly scheduled meeting, the Board reviewed your letter to Commissioner Gatzunis, dated October 3^rd, 2007 which was received by the Architectural Access Board on October 12^th, 2007.

After reviewing the content of your letter and the city's plan to "delineate a 48 inch path, using markers which will be driven into the bricks" the Board voted that this plan does not comply with 521 CMR. Specifically,

Section 22.1 states:

GENERAL

Walkways shall include but not be limited to all walks, sidewalks, overpasses, bridges, tunnels, underpasses, plazas, courts and other pedestrian pathways, and shall comply with the following requirements:

Section 22.3.1 states:

Nowhere shall the cross slope of walkways exceed one-in-50 (1:50) (2%). (Refer to 521 CMR 2.4.4d.)

If you have any questions, please feel free to contact me.

Sincerely,

Thomas Hopkins

And no, I did not change the color of "sidewalks" and "Nowhere" in the above letter from black to red, that's in the original.

Kelly letter to AAB regarding Huntington bricks

Posted by John Kelly

I sent this letter to Thomas Hopkins, the director of the Architectural Access Board on October 7, 2007.

Dear Mr. Hopkins:

Thank you and the Access Board for enforcing the access regulations of the Commonwealth. Your steadfastness over the last three years regarding the unsafe conditions on Huntington Avenue has brought the City of Boston a momentous opportunity: It can choose to protect public safety, honor civil rights, and save limited funds by restoring Huntington Avenue with smooth, accessible concrete; or, it can stiff the public with a dangerous, oppressive, and expensive all-brick sidewalk for decades to come.

Your fine levied on the City since November, 2005, has now climbed over $340,000. As the principal complaintant, I request that you allow the city of Boston, in consultation with residents with disabilities, the MBTA, and the state of Massachusetts (both of whom supported the introduction of the bricks), to put that money towards the concrete restoration of the Avenue. Rehabilitation will cost an estimated $384,000. The Boston Center for Independent Living, which cosigned the original complaint in August 2004, supports my proposal. We believe that the three parties can find the necessary additional funds to both serve the people and -- in the long run -- save their money. It is an outcome in which everyone wins.

It is impossible to describe the feeling of anticipation among people with disabilities who live, work, and visit in the area. We hopefully await the opportunity to travel along Huntington Avenue once again, free of pain and danger caused by the rough, vibratory bricks. No more head, neck, back and stomach-aches. No more bloody falls from canes or feet caught by protruding bricks. No more car sickness, impaired vision, or spasms. No more loss of control, whether of our wheelchairs or bladders. As resident Billie Tyler has said, the prospect of smooth sidewalks "would be like living in another world." We could actually go where we want!

The Access Board's role in bringing back Huntington Avenue to universal use would admirably fulfill its founding purpose "to provide persons with disabilities full, free and safe use of all buildings and facilities so that all such persons may have the educational, living and recreational opportunities necessary to be as self-sufficient as possible and to assume full responsibilities as citizens."

Thank you very much,

John Kelly