HomeMy WebLinkAbout01/06/2009 04C Disabled Parking - Service Request Response MEMORANDUM
TO: Honorable Mayor Edler, Members of City Council
Dick Zais, City Manager
FROM: Jeff. Cutter, Sr. Assistant City Attorney
DATE: December 26, 2008
SUBJ: Response to Mike Hunnel - Service Request 08 -38
This brief Memorandum is provided in response to the specific legal
issues raised by Mike Hunnel during his recent statement to the City
Council on December 2, 2008. Most of the core issues that Mr. Hunnel
raised have been responded to in past memorandums from me and other
staff. Insofar as Mr. Hunnel remains concerned that the City is not
attempting to address the issues he continues to mention, .I have
attached the City's previous responses to most of the problems recited on
• December 2, rather than re- create them again.
The primary response to the most recent concerns expressed by Mr.
Hunnel is that Mr. Hunnel seems to continue to be confused about when
the most current accessibility standards are permitted to be imposed by
the City planning and codes personnel, and when the new standards
cannot be enforced. Nathan Thompson's response to the specific sites
referenced by Mr. Hunnel make it clear that where local businesses have
updated their establishments through remodel efforts, and where that
remodel was significant enough to warrant imposition of updated
accessibility requirements as dictated by the building code, the new
requirements were met. The best example of that principal is the Wal-
Mart Mr. Hunnel mentioned. That store is and has been compliant with
the standards that were applicable to it, both when it was built and after
each of the significant remodels that have taken place since then. There
are no signs on any particular check -out aisles at this time because all of
the aisles are access - compliant. Therefore, no signage is necessary.
Mr. Hunnel also took , issue with the fact that the City has not been
handing out citations to business owners for deficiencies he perceives
with accessibility, as is the case with handicap parking violators. There
are several reasons for this, a few of them being 1) the purported
offending business is not actually offending at all, but is in fact in
• compliance with the code that applies to it; 2) the City believes that when
a violation is discovered it is far more reasonable to initially approach the
business with notice of the deficiency and request appropriate
compliance rather than immediately issue a citation, as the City has
found that often the business is unaware that a sign was moved,
removed, etc., and is perfectly willing to remedy the situation. This
option is generally not available for parking violators because they are
not present when the citation is issued, and therefore cannot be
reasonably warned. Further, when a parking violation is ticketed the
violation occurred in the immediate presence of a warning sign advising
the violator of the restriction, so there was no specific notice Issue; 3) the
City is most interested in establishing business compliance rather than
issuing tickets and because the identification of non - compliant
businesses is most often complaint -driven the City's approach is first to
advise of the requirements before issuing a citation. If the business is
willing to respond as a result of the notice, and it has been the City's
experience that most have, then the ticketing is unnecessary and the
goal is accomplished cooperatively rather than antagonistically.
In Mr. Hunnel's example regarding the counter in Dr. Tew's, office
Nathan Thompson provided a response that addressed the City's present
application of the code that pertains to this issue. In discussions with
other cities and code enforcement officials, we find that there is more
than one interpretation of whether an "appointment counter" in a •
doctor's office, that provides patrons with clipboards to write on in a -
waiting room, should be treated as a "sales and service" counter under
ADA regulations. The City's present interpretation is certainly one of the
ways of applying the requirements; however, we have not concluded our
review to determine if the City of Yakima would be better served by
adopting an alternative interpretation.
The City is aware of the accessibility requirements it must include in the
approval of new construction. The City is also aware that many
buildings exist in the City that are not compliant with the newest
accessibility requirements, for the reasons analyzed in previous
memorandums on the subject. The City is not able to address those
problems unless and . until sufficient remodel work is accomplished to
require the more current codes be employed. The City also continues to
attempt to address compliance issues that it becomes aware of in a
manner that is most likely to result in cooperative compliance. The
City's code enforcement on business compliance is largely complaint
driven, and when Mr. Hunnel and others bring issues to their attention
City staff are interested in addressing the issue to determine what, if any
action should be taken. If Mr. Hunnel would bring his observations to
the attention of the Codes Manager staff would do their best to advise
him of the present code status and take the action necessary to correct •
deficiencies. The City is as interested in attaining full accessibility
compliance as Mr. Hunnel is, and would be happy to work with him
cooperatively in that effort.
•
•
• To: Joe Caruso, Acting Code Administration Mai ager
From: Nathan Thompson, Acting Supervisir} o ' nspector
Date: December 12, 2008
Subject: Service Request #08 -38, Mike Hunnel, ADA violations
I've read through Mr. Hunnel's complaint letter and viewed the two pictures. attached. I
made recent site visits to all three of the specific locations he refers to. I'll respond to
these three specific complaints in order and then address his references to previous
complaints.
1703 Creekside Loop, Dr. Tew: This building was constructed in 2000 under the 1997
Uniform Building Code and the accessibility standards per the Washington State
Amendments to Chapter 11, 1997 UBC. During my site visit I noted that the counter Mr.
Hunnel refers to separates the waiting area from the receptionists' desks. Dr. Tew's
business is oral surgery, which is considered a service only business. In other words, no
goods or products are purchased or exchanged at the counter, which the Code specifies as
the trigger for the lower counter height requirement. The counter, in effect, is there as a`"
• separation of spaces. Clients in offices such as this need only fill out forms, which are
completed on clipboards while sitting in the waiting area. Any items or products given to
clients are done in private accessible client rooms one -on -one. Per the Code, in a situation
like this, there is no need for any portion of the counter to be at a lower height since all
clients receive the same level of service without discrimination.
1600 E Chestnut Ave, Wal Mart: The original building was constructed in 1994 under
the 1991 UBC and the grocery addition in 2001 under the 1997 UBC. During my site
visit I viewed all of the checkout counters across the front of the store, which includes
portions of both the original store and the later grocery addition. For technical accuracy,
it should be noted that these checkout areas have hAd some remodeling since their
original construction. The counter heights, aisle widths and checkout configurations all
meet the accessibility requirements in effect at the time of construction. No signage was
required at the checkout counters as all meet accessibility requirements.
311 S 72 Ave, Dr Teerink: This building was constructed in 2007 under the 2003
UBC and the accessibility standards per ANSI 117.1/2003. During my site visit I
reviewed the exterior accessibility of the building and it is in compliance. There are
actually two buildings in this development, configured in an "L" shape and share one
parking lot. The building at 311 has two main accessible entrance areas, one toward the
north end of the building and one toward the south, which is the entrance into Dr.
Teerink's office. The other building, at 301, has similar separate accessible entrances. On
• ttYfs site, the developer was required to split the required accessible parking and egress
foutes into two different areas of the shared parking lot in order to meet the intent of the
Code. This configuration put each accessible parking area at a point approximately •
central to each accessible entrance of each building. In other words, if all of the required
accessible parking spaces for this parking lot were allowed to have been placed in one
area, they may have been very near one entrance, but at an unreasonable distance from
the others.
Mr. Hunnel also mentions other accessibility complaints previously submitted to the City,
although not in detail. As you know, we research all complaints received and make site
visits to each one. Many of these sites were determined to be in compliance, either with
current standards or standards in effect at time of construction. Some of the sites,
however, had accessibility violations, which we require be brought into compliance with
the applicable standard at the time the building was constructed. Off the top of my head I
know of one site that Mr. Hunnel brought to our attention that has outstanding
accessibility issues. Creekside development has some outstanding accessible parking
violations, which we've covered with the developer and they have agreed to correct.
These corrections involve re- striping and moving some ADA signs, which we will ensure
is completed.
•
•
•
sm
SERVICE REQUEST
• "It's My Job"
No. 08 - 38
Date Requested Reply Date:
December 4, 2008 December 11, 2008
Requestor: Originator: •
Name: Cally Price
Mike Hunnel Department: City Manager's office
913 South 4th Avenue
Yakima, WA 98902
Referred To:
Re: Jeff Cutter, legal
ADA and code violations Joe Caruso, codes
Dave Zabell
Brett Sheffield, engineering
• Please review the attached letter and provide a draft response to the City
Manager's Office.
Thank you.
Please copy your response to Cally in the City Manager's Office
Action Taken: _
Completed by: Citizen Contacted:
Name: Yes
Title:
Reply Date: No
•
4 '
City Officials Truths
vs.
The Reality
12/2/08
My name is Mike Hunnel and reside at 913 So. 4th Ave. I am here to
attempt to stop the acts of discriminations here in Yakima against the
disabled. You more than likely will NOT like what I am about to present
today because I am going to present the cities officials truth vs the reality
regarding handicap accessibility issues. And yes this presentation is longer
than it probably should be but I couldn't figure out how to make it any
shorter.
In every war that we the U.S. have been in whether it was WW1, WW2,
the Korean war, the Vietnam war, desert storm, or the present war while in
that war we ALWAYS hear talk of supporting our troops. But when our
troops come home they are NO longer supported especially and more
importantly our disabled veterans. As I present my presentation you will here
of many different ways that our disabled veterans are NOT being supported
any longer after coming home from fighting for our freedoms. Freedoms that
we are losing every day by our governments taking them away which is
another topic all together.
For over the last three years "the city officials truth" has been that they
take handicap accessibility issues very very seriously and are doing what they
are able to regarding the handicap accessibility issues. The reality is the city
officials are telling more lies, NOT doing unto other's as they would have
them do unto you, talking out their backside because their mouths no better,
the right hand NOT knowing what the left hand is doing, talking the talk but
• NOT able to walk the walk, being hypocrite's, and reaping what you sow. See
if what I present here today doesn't remind you of the old saying "do as I say
NOT as I do?"
•
On December 17, 2007 I informed council that the senior building
inspector, the ADA coordinator, the code enforcement officer, the city
attorney, the city manager, and I might have included council were
responsible for all these acts of discriminations against the disabled people.
When the reality is not ONLY are the previously mentioned but also the
people who draw up the blueprints and the people who oversee the blueprints
are responsible for some of these acts of discriminations against the disabled
people. Don't they build whatever is put on paper?
The city officials truth is that they are doing their jobs of inspecting brand
new buildings and /or structures regarding the state standards of handicap
accessibility issues. When the reality is at least seven to nine out of every ten
businesses do NOT comply with the state standards regarding handicap
accessibility issues. If you don't believe it, what about all the businesses that I
brought to council at Creekside Loop. And if that's not good enough here's a
picture of Walgreen's before they tore up the disabled parking. Hopefully
when the disabled parking is redone it will not be the latest to be added to the
list of the many businesses that are opening their doors to the public without
being compliant with the state standards regarding the handicap accessibility
issues. But yet the inspector's and/or the city officials are doing their jobs, ya
right. With all the material that I have brought that proves without a shadow
of doubt that the city officials are NOT doing there jobs including Mr. Zais.
And in my opinion ANYONE who supports or believes that Mr. Zais and the
rest of these city officials are doing their job is missing a few screws.
Because if so I wouldn't be able to bring to council so many brand new
businesses that do NOT comply with the state standards that keep opening
their doors before they are compliant with the state standards.
Also through two different phone conversations with Mr. Jerry Robertson,
one of the people who oversees the blueprints, I was told that the building
inspectors hadn't opened any of the state standard books regarding handicap
accessibility issues. But I also discovered the even he, Mr. Robertson, hadn't
open any of the books of the state standards regarding handicap accessibility
issues either before our conversation. And apparently the reality is this is also
the truth with all of the brand new buildings at Creekside Loop that I
presented to council that do NOT comply with the state standards.
•
In the very beginning when I brought council material showing that the
City of Yakima was suppose to have had a plan in affect in 1992 and had to
have them compliant by January of 1995 for at least the bus routes to be
handicap accessible. The reality is that the City of Yakima did NOT come up
with a plan until I presented a lawsuit that had taken place in Sacrament,
California. The plan was finally achieved in 2005, 13 yrs later.
The city officials truth is I have presented that there are two sides to the
ticketing process. Which are the public can be ticketed for parking in a
disabled parking space without having the appropriate disabled parking
permits and that the fines are double for parking in the access aisles. But also
the businesses can be ticketed for NOT having the appropriate signage in
front of their disabled parking space(s). The reality is there has been
hundreds, if not thousands, of the public that has been ticketed for NOT
having the appropriate signage to be parked in a disabled parking space but
the businesses have NOT been ticketed equally for NOT having the required
signage up in front of their disabled parking spaces. In fact I am willing to bet
as of today that there has NOT been a baker's dozen worth of tickets given to
the businesses for NOT having the appropriate signage that's required by law
in front of their disabled parking space(s). For those of you who do NOT
know what a bakers dozen is, that's 13.
Even though there is nowhere it says in the state standards what side the
access aisle for a van parking space should be on, the cities officials truth is
that they can put the access aisles on the left side of the van parking space
even with having ONLY one disabled parking space especially on a one way
flow of traffic. When the reality is when the city officials of Yakima or any
other city in the U.S. is able to provide a van with the lift on the driver side
the you can leave these access aisles on the left side even with the flow of
traffic being one way. (photo's)
The city officials truth is that the 16 businesses I brought pictures to
council on a CD were more than willing to be compliant with the state
standards. One of them was even given a 15 day time limit when there is NO
• law on the books to be able do so. When the reality is that today there are
only six out of the sixteen, six that actually are compliant with the state
standards. So much for all sixteen so willing to be compliant huh ?
New Information
The city officials truth is again that the state standards are being met. When
the reality is they are NOT because here are two photo's of Dr. Tew's office at
1703 Creekside Loo showing NO handicap accessible counter. When the
state standards require one of, I believe, of around 34 inches, this counter
exceeds that measurement but yet passed inspection.
I have already given council one way that the city officials do NOT have
the "guts and/or the balls" to stand up to the businesses which is the
businesses are NOT being ticketed equally regarding the ticketing process,
here's another one.
Wal -mart on East Chestnut passed inspection in 19! having 31 cash
registers across t e ront of t e store wit not one of them marked han. icap
accessible. According to the state standards with there being 3'1 egi eras
across the front of the store at least three to five of them are suppose
handicap accessible and do not have. When the reality is the ONLY handicap
accessible counters that walmart has are in the middle of the store and was .
put there when they remodeled in between 2002 and 2004, I do believe.
So far for within the past three years I have brought to council two
different ways I have seen this city waste city funds. The first was with the
redoing the corners on Yakima Ave since they were already compliant with
the state standards. The second was some and/or most of the corners from
Stewart to Division on Third Ave. Now for the third, Approximately two
years ago I had a meeting with the senior building inspector, the ADA
coordinator, the code enforcement officer, the city attorney, and the city
manager Mr. Zais. The city officials truth is according to Mr. Zais that the
city has the funds for a possible lawsuit against this city and different entities
within the city regarding handicap accessibility issues. When the reality is it
would be another total waste of city funds and showing nothing but stupidity
and ignorance to be taken to court just to be told that ALL of these building
MUST be compliant with all the state standards before they open their doors
to the public. And when apparently very few of the city officials are NOT
doing their jobs including Mr. Zais it really really really makes me wonder
what kind of leadership we have here in Yakima, we don't.
4
•
In closing, Mr. Johnson I surely hope and even pray, not being very a
religious person, that the leadership that I have presented here today
regarding handicap accessibility issues is NOT the kind of leadership you
take to Olympia. Mr. Johnson during your campaign you stated that you
wanted to go to Olympia to "work" for us, your constituents. Well Mr.
Johnson here are three things you could start with to show that your willing
and /or wanting to work for us. The first is get a law put on the books giving
businesses a time limit to make their non compliant issues compliant. Here's
a suggestion for a time limit: Once the business is notified of their non
compliance they have 30 days to make their non compliance compliant and
another 30 days to make sure. In my opinion, sixty days should be sufficient
time to make the non compliance compliant. Second, raise the fines from
$250.00 to $1000.00. I am sure if a few people had to pay such a stiff fine I
am willing to bet that they would park in a disabled parking space again. And
• number three which is a two parter: First part, make the fine equal to the
businesses as they are to the public and the second part is to have them
enforced not to show discrimination against the public and the disabled.
I have a challenge for each and every one of you including you Mr. Zais
and even Mr. Johnson so he will have more incentive and understanding to
work for his constituents in Olympia. The challenge is to sit your fanny's in a
wheelchair for one week, from the time your you get out of bed you sit your
fanny in the wheelchair and spend your entire day until you go to bed in that
wheelchair. That means to move around in your homes in the wheelchair, go
to work whatever work is, come to a council meeting in a wheelchair, go to
Dr. appointments in the wheelchair. While your going around in the
whee l_c�h i rs g Q r 3 1 L cn 2nd e�,P Ro into Dr. Teerink's office and tell me
how easy it was to get into that facility. How many of you are willing and/or
wanting to sit in a wheelchair for one week, Mr Mayor ? Council ? Mr. Zais.
Oh and by the way maybe all of the people that are responsible for all of
these acts of discriminations against the disabled people should sit their
fanny's in a wheelchair for one week too.
•
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CITY OF YAKIMA - LEGAL DEPARTMENT
200 S. 3rd St, Yakima, WA 98901-2830
L Raymond L Paolella, City Attomey CRIMINAL DMSION
DMSION Cynthia Martinez
Helen A Harvey Mary B. Smith
Sofia D. Mabee Bronson Faul
Jeffrey R. Cuter Lacy W. Heinz
Phone: (509) 575 -6030 FAX (509) 575 -6160 Phone: (509) 575 - 6033 .,
MEMORANDUM
TO: Mr. Mike Hunnel .
FROM: Jeff Cutter, Assistant City Attorney
DATE: June 7, 2006
SUBJECT: ADA Compliance
This memo Is, In part, responsive to further complaints submitted to the City of
Yakima by Mr. Mike Hunnel on May 31, 2006. Specifically, this memorandum
0 addresses the Issue of the City's timeliness In complying with the ADA
standards regarding street and sidewalk upgrading to meet ADA requirements.
The City of Yakima has actively worked to comply with all directives of the ADA
as they have existed since the first ADA regulations were enacted. Streets and
roads within the City that have been constructed during the time ADA
regulations have existed have been constructed to comply with the standards
applicable at the time of construction. Of course, the standards have been
revised and changed over the years, and as they have changed, the City's
construction standards have changed with them. That does not mean that the
City has gone back and ripped out work that was In conformance under old
standards, but might not be compliant with the new standards. Neither does It
mean that the City has torn out non - compliant sections of road and sidewalk
that were built before the ADA standards existed and have not been updated
since the existence of the ADA standards.
The current ADA requires that City's Identify streets and sidewalks where ADA
standards are not met, and formulate a plan to systematically resolve those
non- compliant areas. As was stated by Shelley Willson during a previous City .
Council meeting during which this subject was discussed at length, the City
has taken the steps to Inventory significant ' areas of the City for compliance
with ADA standards, Identified numerous areas that require up- dating to reach
•
compliance with current standards, and has formulated a staged process by
which to resolve these non - compliant situations as funding for these very
costly projects becomes available. It Is the City's position that at, the present
time It has done all that Is reasonable and required to meet Its duties under
the ADA, and It Is the Intent of the City to continue to work very hard to
Identify resources by which non - compliant areas of the City may be brought
Into compliance with the current standards. This endeavor has been and
remains a significant challenge due to funding availability, but nevertheless
shall remain an Important goal that the City will continue working to achieve.
_ _
CITY OF YAKIMA - LEGAL DEPARTMENT
200 S. 3rd St., Yakima, WA 98901-2830
Raymond L Paolella, City Atlomey CRIMINAL DMSION
Ilitt DMSION Cynthia Martinez
Helen A Harvey Bronson Faul
Sofia D. Mabee Lacy W. Heinz
Jeffrey R. Cutter Keith E. Hide
Jon L. Seitz
Phone: (509) 575-6030 FAX: (509) 575-6160 Phone: (509) 575-6033
MEMORA ND UM
TO: Honorable Mayor Edler; Yakima City Council Members
Dick Zais, City Manager
FROM: Jeff Cutter, Sr. Assistant City Attorney
DATE: March 22, 2007
SUBJECT: Response to Mike Hunnel Report to City Council
The City Manager requested that I provide a response to City Council regarding the
0 report Mike Hunnel presented to City Council during the March 20, 2007 City Council
Meeting, titled "City Staff's Lies ". In the report Mr. Hunnel makes several pointed
statements that deserve discussion.
I spoke with Mr. John Neff from the City of Lacey to gain clarification of the information
that he had provided to Mr. Hunnel and which was included in the Hunnel report in the
form of an e-mail dated March 1, 2007. Mr. Neff explained that he had spoken with Mr.
Hunnel on several occasions regarding handicap accessibility issues. He explained
that he has had a difficult time getting Mr. Hunnel to understand the differences
between the ADA compliance requirements enforced by the federal government and
the State building code accessibility requirements. Mr. Neff reviewed the March 1,
2007 e -mail that Mr. Hunnel attached to his report and advised that it accurately stated
the status of the accessibility requirements from both the State and Federal levels. He -
reiterated to me that the ADA compliance requirements are not enforceable by local or
State governments, but rather through the U.S. Civil Rights Division of the Department
of Justice, or through action taken through the Federal District Court. In reviewing Mr.
Hunnel's material I note that he apparently inadvertently highlighted only a portion of
the last sentence of paragraph five. The full sentence states "[n]o local authority can
enforce compliance with the ADA."
The sentence, when read in its entirety, is specifically what Mr. Hunnel was told by
Doug Maples numerous times during the recent meeting held between Mr. Hunnel and
City staff members Sheryl Smith, Doug Maples, Joe Caruso and me. During that nearly
two -hour meeting held on March 5, 2007, Mr. Hunnel was advised on multiple
• occasions that he was misunderstanding the information he was reciting from Mr. Neff s
March 1 e -mail. My conversation with Mr. Neff today confirmed that position. The law
regarding accessibility in Washington is as I described- it in my March 23, 2006
Memorandum that has been provided to the City Council on two separate occasions in
response to Mr. Hunnel's concerns. I reviewed that information with Mr. Neff and he
agreed that the Memorandum reflects his understanding of the status of the
accessibility laws in Washington also.
Finally, I discussed with Mr. Neff the issue of City staff contact with him and when he
had last communicated with Mr. Maples. He recalled that he had been requested to
attend a City Council meeting in September of 2006, but that as a result of a death in
his family he had been unable to attend, and had advised Doug Maples of that, as
reported to Council by Mr. Maples during a City Council meeting held September 5,
2006. I have attached the e-mail Mr. Maples received from Mr. Neff to that affect. Mr.
Neff confirmed the authenticity of the attached e-mail dated September 1, 2006.
It is unfortunate that Mr. Hunnel's perception of the City's explanations to him, and the
expressed desire of the City to assist him in addressing accessibility concerns that he
may believe to exist, to the extent the City has the authority to do so, has resulted in Mr.
Hunnel's latest action to the City Council. Having been present at the last meeting held
with Mr. Hunnel, I can only state that from my perspective, City staff consistently treated
Mr. Hunnel with respect and made every effort to convey accurate information and
responses to his questions.
•
•
BUSINESS RESPONSIBILITIES
® TOWARD COMPLIANCE WITH
PARKING FOR DISABLED PERSONS
This notice is to advise you that the State of Washington has adopted the Barrier -Free
Accessibility Requirements of the International Building Code (IBC). WAC 51 -50 -005.
The IBC establishes the number of disabled parking spaces that are required on a
particular property. If your property is required to provide handicapped and elderly -
accessible parking stalls, the following signage and access compliance is necessary.
RCW 46.61.581 requires that parking stalls provided for persons with disabilities shall be
identified by a vertical sign with an international symbol of access, whose colors are
white on a blue background, as described under RCW 70.92.120. The failure of a person
owning or controlling the property to erect and maintain the necessary signage for each
required handicap- accessible parking stall is a class 2 civil infraction for which a citation
may be issued. Chapter 7.80, RCW. Such person shall also ensure that the required
handicap- accessible parking spaces are not blocked or made inaccessible. Failure to do
so is also a class 2 civil infraction for which a citation may be issued.
If you are uncertain about whether or not you are required to provide appropriately signed
handicap- accessible parking spaces for property you own or control, you should contact your
own attorney or the City of Yakima Codes Division for assistance. However, if your parking
facilities already include handicap- accessible parking stalls, the aforementioned standards apply .
to you.
Received by Date
CITY OF YAKIMA - LEGAL DEPARTMENT
200 S. 3rd St., Yakima, WA 98901 -2830
Raymond L Paolella, City Attorney CRIMINAL DMSION
OIL DMSION Cynthia Martinez
Helen A Harvey Jeff Cutter
Sofia D. Mabee Mary B. Smith
Bronson Faul
Lacy W. Heinz
Phone: (509) 575-6030 FAX: (509) 575 -6160 Phone: (509) 575 -6033
MEMORANDUM
TO: Honorable Mayor Edler, City Council Members
FROM: Jeff Cutter, Assistant City Attorney
DATE: March 23, 2006
SUBJECT: Legal Summary of the Law in Washington Concerning Disabled and
Elderly Access Requirements.
This memorandum is intended to provide an overview of the law, regulations and
•
guidelines pertaining to disabled and elderly accessibility provisions as applied by and
within Washington. This memorandum is not intended to be an exhaustive analysis of
the legal nuances surrounding the area of public accessibility; neither is it intended to
analyze any particular geographic location to determine specific compliance with
accessibility requirements, for the reasons that will be discussed below; It is hoped that
the information contained herein may be useful to the City Council when considering
specific areas of accessibility that may be raised by the citizens of Yakima.
ACCESS REQUIREMENTS FOR BUILDINGS AND STRUCTURES
Washington regulates public and private building construction through statutory and
administrative regulations. The Washington building code is provided through statutory
directive set forth in RCW 19.27. The intent of the building code is, among other stated
purposes, to `provide standards and specifications for making buildings and facilities
accessible to and useable by physically disabled persons.' RCW 19.27.020(5). The
Washington building code, applicable to all Washington cities and counties, is provided
in large part by the incorporation of the International Building Code (IBC). RCW
19.27.031(1)(a). The IBC became effective in Washington on July 1, 2004. WAC 51-
50 -008. Several other international and uniform codes also contribute to the State
code, but any conflicts among them defer to the IBC. RCW 19.27.031.
The Washington Building Code gives authority to its cities and counties to amend the
code as it is applied within each entity's jurisdiction, but does not permit any
amendments to diminish the intent and purpose of the State Code. RCW 19.27.040.
• In other words, with respect to Yakima, the City may choose to provide greater
restrictive control to a particular code requirement than the State requires (ie -snow load
engineering requirements), but it cannot reduce the State - adopted requirements. Cities
and Counties are also expressly prohibited by statute from amending any provisions
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of state law pertaining to building requirements intended to assist aged and disabled
persons. RCW 19.27.040. This statute specifically states "[n]othing in this chapter
shall authorize any modifications of the requirements of chapter 70.92 RCW." RCW
chapter 70.92 sets forth the applicable law intended to serve and protect the aged and
handicapped, and specifically establishes the rules and regulations pertaining to
accessibility as determined by the State Building Code Council, as required by RCW
19.27.031.
RCW 70.92.100 states the intent of the legislature for enacting accessibility standards,
providing that "notwithstanding any law to the contrary, plans and specifications for the
erection of buildings through the use of public or private funds shall make special
provisions for elderly or physically disabled persons." Interestingly, this law was passed
in 1975, the year before the ADA compliance regulations became effective, and still
controls in Washington today. RCW 70.92.110 identifies the buildings and structures to
which the standards apply, and also specifically exempts certain buildings and
structures. These requirements and exemptions are important to understand with
respect to considering areas of Yakima that are claimed to be non - compliant with ADA
standards.
The accessibility standards set forth in RCW chapter 70.92 apply to buildings,
structures, or portions thereof (hereinafter "buildings ") used primarily for group A -1
through group U -1 occupancies, except for group R -3 occupancies. All such buildings
constructed, substantially remodeled, or substantially rehabilitated after July 1, 1976,
shall conform to the standards and specifications adopted under this chapter. RCW
70.92.110. The statute then provides a number of exemptions to this requirement, the
most important of which is "any building in respect to which the administrative authority
deems, after considering all circumstances applying thereto, that full compliance is
impracticable." RCW 70.92.110(2). The statute defines "substantially remodeled or
substantially rehabilitated ", for purposes of statutory compliance, as "any alteration or
restoration of a building or structure within any twelve -month period, the cost of which
exceeds sixty percent of the value of the particular building or structure ". Therefore,
unless a building that is not in compliance with the current accessibility
requirements of the State Building Code is remodeled at a cost that exceeds sixty
percent of the value of the building, the Code does not require that it be made
compliant with current accessibility standards.
This is the law that controls what the building department can require with respect to
enforcing current accessibility standards as applied to building and construction in
Washington. The accessibility requirements of the IBC also incorporate the number of
required parking spaces for a particular building, and how many of those spaces must
be handicap compliant spaces. This law is specifically immune from any modifications,
either to increase or decrease its impactor effectiveness. The application of this law
gives rise to several of the situations that have been raised before the Council recently
as alleged violations of the ADA accessibility requirements. When a new building is
constructed, at the time plans are approved the accessibility standards that are required
under the building code then in effect are enforced against the development, including
all aspects of accessibility to the property, the parking lot, walkways, entries, doors,
hallways, restrooms, etc. Once the building is built, years pass and regulations change,
the building may no longer comply with the modern standards. However, under
Washington law, until the building undergoes alteration or rehabilitation amounting to
sixty percent of the value of the building, it is not required that the building be updated
to the modern standards. Indeed, were the building department to require present day
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compliance without the requisite sixty percent remodel cost element being met, the
building department would be in direct violation of a specific statutory restriction.
Further, even if the building is upgraded to a degree that the rehabilitation value
exceeds sixty percent of the cost of the building, the building department has the
discretion to consider the practicality of requiring full compliance with the current
accessibility standards and, if deemed impractical to require full compliance, may
require only partial compliance or waive compliance altogether. This is a site by site,
project specific determination left to the discretion of the building department. RCW
70.92.160. The net result of the application of the accessibility law in Washington is
that there will always be properties that do not comply with current Washington
accessibility standards. This is to be expected for the simple reason that the laws
defining accessibility requirements are always under review and changing. As recently
as July, 2004, the entire State building code was amended from the previously adopted
Uniform Building . Code to the International Building Code. This amendment
incorporated numerous changes in accessibility requirements because the IBC is a
2003 code, reflecting a great deal of growth from the 1994 UBC previously in effect in
Washington. It would be unreasonable, not to mention impossible, to require every
property subject to the accessibility requirements to "remodel" every time a new
accessibility provision was enacted. This is why the RCW is written to require
accessibility updating and compliance only at such times as significant remodeling is
undertaken.
In summary, Washington regulates construction of public and private buildings through
RCW incorporation of the IBC. Washington has specifically adopted IBC Chapter 11 as
II well as other IBC requirements concerning barrier -free accessibility pursuant to RCW
19.27 and 70.92, as set forth in WAC 51 -50 -005. In order to accurately analyze a
specific site for accessibility compliance one must determine when the property was
constructed (pre or post 1976) and, if post 1976, what accessibility code requirements
were then in effect and whether or not the building complies with those requirements.
Next, one must determine if and when any remodeling was done to the property, and if
so, did the value of the remodeling exceed sixty percent of the value of the property. If
the value did not exceed sixty percent, then no further additional access requirements
apply. If it did exceed sixty percent, then it must be determined what accessibility
provisions applied at the time the remodel was accomplished, and were those
requirements enforced, or waived in whole or in part, based on the practicability of
installing the added accessibility features. This is the process that would have to be
taken with respect to every property being investigated for compliance with accessibility
standards. That is the role of the building department of every jurisdiction in.
Washington; to continually update and monitor compliance requirements as each
property being built or remodeled submits its plans for review prior to construction.
There are specific provisions for accessibility compliance with regard to historical
structures also, insofar as that issue has also been raised before council. To the extent
possible without destroying the historical character of the property in question, a
substantial remodel would require certain accessibility provisions be incorporated.
Those properties are not immune from accessibility compliance, but do fall under a
different code section oversight and consideration.. These requirements are also
• specifically provided in the IBC, incorporated by statute in Washington.
CITY ROAD AND STREET ACCESSIBILITY REQUIREMENTS
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With respect to accessibility compliance for streets and sidewalks within the City, the
standards are established by the Americans With Disabilities Act. Unlike the
construction building code that incorporates the IBC (which itself incorporates the
requirements of the ADA to a large degree) the provisions: required for access
compliance on streets and sidewalks do derive directly from the federal standards. The
procedures for compliance are similar, in many respects, to the building code
procedures. New street and sidewalk construction is required to conform to the newest
ADA prescribed access provisions. Work undertaken to re- build, repair or replace
existing streets and sidewalks may trigger a requirement to update all areas of the
project to current standards. There is provision in the requirements for consideration of
the cost to perform the updates and the availability of the funds to accomplish the work.
If the cost to completely update the project area during a repair is unreasonable or
unaffordable for a jurisdiction, then there are opportunities provided to accomplish what
can reasonably be accomplished, essentially doing the best that can be done with the
resources available. Whether or not a particular project triggers full compliance
depends on the size of the project undertaken. For example, re- striping the lines on a
road surface would not trigger a full ADA - compliant reconstruction of curb ramps
adjacent to the striping project. However, resurfacing of a street will require that
adjacent curb ramps and pedestrian crossings be brought compliant with ADA
standards.
Local governments are required to carry out an inventory of ADA deficient areas within
its jurisdiction and establish a plan intended to resolve the compliance challenges within
a reasonable time. This planning includes the identification of the problem areas, the
determination of costs associated with correcting them, allocation of available resources
to begin bringing the identified areas into compliance, and a plan of action directing
work on the most urgent problem areas first. The Streets Division of the City addressed
the progress it was making toward accomplishing these requirements in a Council
meeting early last winter, identifying the ADA requirements it is required to meet and
what was being done to meet those goals.
The requirements of the ADA that regulate the accessibility compliance for public
streets and roads are to be distinguished from the RCW / IBC requirements that pertain
to parking lots .associated with building projects subject to the building and planning
department. _ The two are not the same and do not undergo the same oversight or
compliance procedures.
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,� &: 4 1 DEPARTMENT OF COM�(UNTfYAIVD ECONOMIC DEVELOPMENT
Office of Code Administration * codes ciyakima.wams
. 1 " 1 Maples, CBO, Code Admin. and Planning Manager www ei yakima wa ns
`.' ` ''',4,1, 129 North Second Street, 2nd Floor
`' f *_ ,I.
Yakinaa, Washington 98901
(509) 575 -6126 or 575-6121 *Fax (509) 576 -6576
Date: 08/31/2006
To: Council Members and Economic Development Committee Members
Dick Zais, City Manager
From: Doug Maples, Code Administration and Planning Manager
RE: Complaint response report on Barrier -Free accessibility for private parking
During the City Council's audience participation on a number of occasions over the last
year, Mr. Hunnel has expressed concerns to the City Council regarding alleged ADA
® violations on private property and city right of way. Council has taken Mr. Hunnel's
concerns seriously to the point of holding a study session on those issues in March 2006.
During audience participation at the August 15, 2006 City Council meeting, Mr. Hunnel
indicated he had a developed a list of commercial property parking space accessibility
violations. Council directed City staff to review the properties and report back to Council
regarding the status of the allegations.
It is important to mention that the Code Administration and Planning Division has only
the accessibility oversight responsibility for all development on private property in the
City of Yakima. Therefore, each proposed project submitted to the city must be reviewed
for compliance with the Washington State Barrier Free Accessibility regulations.
Since the August 15, 2006 Council meeting, City Codes and Planning staff have spent
approximately 100 total hours researching, visiting and photo documenting the 19
commercial locations Mr. Hunnel identified. To research the status of compliance, the
City staff had to review the date the building permit was issued and the requirements of
the building code in force at the time the permit application for each site in question was
received. There are also times when additional factors must be considered when applying
the code to a particular project, such as the number of parking spaces required by the
Code verses the number actually built as well as the slope of a parking lot, which may
require alternate locations for disabled parking space(s).
0 Unlike other divisions and departments of the City, such as Engineering and Public
Works which enforce Federal ADA laws, the Code Administration and Planning Division
for the City of Yakima must follow Washington State law as stated in RCW 19.27.040
and RCW 70.92 (see Jeff Cutter's March Memorandum). Furthermore, by statutory
restriction Washington State Accessibility regulations cannot be amended or modified by
local jurisdictions at all, even if the city or county wanted to make the law more
restrictive. Washington State, through the Governor's appointed State Building Code
Council, submitted the States Barrier Free Accessibility regulations to the Federal
Department of Justice (DOJ) for approval. Based on the DOJ's certification, Washington
State has restricted cities and counties from amending any portion of the Washington
State Accessibility regulations.
Mr. Hunnel has also previously raised concerns about City sidewalks and ramps.
Presently, the City of Yakima notifies property owner's, on a complaints received basis,
of their responsibility to repair broken or raised sidewalks that reduce the mobility of
individuals or create tripping hazards. In 2007, the City has allocated $20,000 for ADA
ramps. These funds will be used as local match in grant application(s) to repair or install
ADA ramps.
At the September 5, 2006 City Council meeting, City staff will present a PowerPoint
presentation response to Mr. Hunnel's complaint list. The presentation reviews each of
the 19 sites identified by Mr. Hunnel as violations of the Barrier -Free accessibility
requirements. In addition, we have invited owners of the 19 identified properties to
attend this presentation. Mr. John Neff, City of Lacey Building Official and Chairman of
the Washington State Building Code Council will be present to address Council and
answer questions. The Washington State Building Code Council is a Governor's
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appointed council to review any and all state code amendments to the construction family
of codes of which the Barrier -Free Accessibility requirements are included.
S
MEMORANDUM
Date: October 1, 2008
To: Honorable Mayor and Members of City Council
From: Brett Sheffield, Chief Engineer
Re: Mike Hunnel claim regarding ADA ramps on 3rd Avenue
In 2004, the Washington State Department of Transportation ( WSDOT) sent out
a directive to revise WSDOT policies addressing ADA accessible facilities in all
projects, including preservation projects such as the 3rd Ave. grind and overlay
project recently addressed by Mr. Hunnel. The ADA improvements required
include the addition of detectable warning (truncated dome) surfaces to all
sidewalk ramps or trail crossings. The WSDOT directive states that "paving
projects that propose resurfacing of Hot Mix Asphalt or Concrete are required to
address ADA issues in accordance with this supplement. In the case where a
city, town, or county preservation (paver) or improvement project abuts non -ADA
compliant ramps, the local agency is responsible for updating the ramps."
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During the design of the 3 rd Avenue project, we reviewed all of the existing ramps
and street corners with sidewalk that abutted the areas to be resurfaced. At all
street corners with no ramps or ramps that were significantly non - compliant, we
installed new ramps that are ADA compliant to the maximum extent practicable.
In areas where existing ramps were compliant except for the lack of a truncated
dome surface we will install surface applied truncated domes as part of this
project. When completed this project will include 31 new ramps and 11 surface
applied truncated domes.
We did not replace the ramp at the southwest corner of 3rd and Stewart, which
was upgraded a couple of years ago. However, the other ramps that Mr. Hunnel
specifically mentioned were replaced due to the fact that they were little more
than curb cuts and were not compliant WSDOT directive. The cost to remove
and replace each of the deficient ramps on this project was approximately
$1,400.
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