This is the tale of three communities confronting issues of sidewalk accessibility. These situations go to the core of accessibility planning, not simply legal disputes about curb cuts, ramps, and accessible sidewalks. Each community deals with what it means to be accessible and what is required to comply with our disability laws. As is typical, these difficulties are often exemplified by disputes involving everyday accessibility problems, such as those relating to sidewalks.
Title II of the Americans with Disabilities Act (ADA) protects persons with disabilities from discrimination in services, programs, and activities provided by state and local government 42 U.S.C. §§ 12131-12165. Under Title II of the ADA, there is no obligation to build sidewalks, but if sidewalks are built, these sidewalks come within the domain of Title II. Specifically, sidewalks are considered a state and local government program, service, or activity. At the same time, sidewalks can also come within the ADA as facilities. And if federal funds are used to support the building of sidewalks, the state and local governments are also subject to Section 504 of the Rehabilitation Act. 29 U.S.C. § 749. Under both federal acts, all new sidewalks and alterations of existing sidewalks must be accessible to the maximum extent possible. Moreover, sidewalks must be maintained and kept in good and usable condition.
Sidewalks are an essential part of the community infrastructure. They permit people to navigate easily and safely among and between the many venues where life is experienced – home, school, work, shopping, entertainment, worship, recreation, and political participation. Some people may believe that sidewalks are mundane, ordinary, and insignificant, but for others, sidewalks are vital pathways to community participation. Accessibility is an important factor to consider in the planning process when we recognize that nearly 20 percent of American families have a family member with a mobility impairment, and approximately 20-25 percent of the US population have some disability. And for communities with an aging population, the rates of disability are even higher.
This past spring, the city of Sacramento, California, was the target of a class action lawsuit brought on behalf of people with disabilities. See Hood v. City and County of Sacramento, No. 2:2023 at 00101 (E.D. Cal. Feb. 7, 2023). The issue in the case positions the rights of people with disabilities to have safe and easy access to sidewalks against the rights of people experiencing homelessness to occupy public spaces that include sidewalks. The homeless population in places such as Sacramento poses several planning difficulties. Among current concerns is that many unhoused people occupy public sidewalks with tents and makeshift shelters for themselves and their possessions. In doing so, the sidewalks are blocked, making it difficult or impossible for people in wheelchairs to navigate the community safely and easily. In the face of inaction on the part of the city and the county, disability-rights activists have sued the city for violating the ADA for failing to maintain accessible sidewalks by not removing the homeless people who are blocking them.
The Town of DeWitt, New York (a suburb of Syracuse) defines sidewalks as “snow shelves” to avoid an obligation to keep the sidewalks clear of snow in the winter. Town of DeWitt, N.Y. Code § 192-19.1. Snow removal is expensive, especially in a community that does not find it unusual to receive 150 inches of snow during winter. Maintaining sidewalks and keeping them clear of snow and ice for people with disabilities requires specially sized snow removal equipment and a budget for many hours of labor. In a planning move, the town added a provision to the local zoning code defining sidewalks as snow shelves, which are places where snow can be placed during the winter months. This designation allowed street plows to push the street snow onto sidewalks while simultaneously permitting sidewalks to remain inaccessible. When pressed on the subject of failing to maintain accessible ADA sidewalks, the town has responded by asserting that the ADA does not cover snow shelves. A sidewalk by any other name is still a sidewalk and, as such, is covered by the ADA.
In May of this year, a contact from a small community in upstate New York informed me of her concern that her community, rather than repairing broken and unsafe sidewalks, may simply remove some bad sidewalks and not replace them. When sidewalks fall into disrepair and become buckled and cracked, they present difficulties for use. They also raise potential liability issues for communities when a person falls and is injured using an unsafe sidewalk. Such sidewalks effectively deny access to people in wheelchairs and people with other mobility impairments. Tearing up these broken sidewalks and replacing them with new ADA-compliant sidewalks is expensive. For some communities with budget constraints, removing the old sidewalks and replacing them with grass is significantly cheaper. The thinking is that, in as much as there is no obligation to provide sidewalks in the first instance, removing an old sidewalk does not require replacing it with a new one. Moreover, planting grass where once there was concrete may signal a commitment to reclaiming green space, thus pitting people with disabilities against supporters of green development.
In each of these cases, we find communities struggling with the need for greater accessibility. At the core of the problem, we see fundamental disagreements about what it means for a community to be accessible and questions about what is required to comply with federal disability law. These are not issues of sidewalk design or proper curb cutting and ramping; these are higher-order issues about the law and the practice of good land planning and zoning.
In each of the three scenarios, there are competing interests at stake. There are also competing claims regarding the proper use of limited budgetary resources. Legally, there are concerns about a lack of compliance with our disability laws. First, sidewalks are fundamental infrastructure for accessing community life. Tolerating blocked sidewalks, broken sidewalks, and sidewalks covered in snow deprives people with disabilities of equal access to community resources. Thus, in addition to violating specific requirements under Title II of the ADA, such conditions raise questions of violating the equal protection clause of the Constitution. This potential claim arises, for example, when a sidewalk, although broken and cracked or intruded upon by a homeless encampment, is still usable by people not in a wheelchair but unusable by those in a wheelchair. On the issue of taking out and not replacing an existing sidewalk, a different concern arises. Although difficult to prove, such actions may be examples of intentional discrimination and disparate treatment under Title II. There is an element of animus in responding to a need to update programs, services, or activities by eliminating them so that a community does not have to pay for complying with our disability laws. In planning, therefore, it is vital to maintain a good record of the discussions and studies behind such actions and to evaluate their potential effect on people with disabilities relative to people not protected by the ADA.
Planning for accessibility is essential. These disputes concerning sidewalks illustrate a larger and deeper problem related to the lack of deliberative planning for our disability laws. Therefore, lawyers and planners need to work collaboratively to address the fact that much more needs to be done to meet the accessibility needs of all our community members.
