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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. • ■••• • !k. 7- 4 + . . • . • " • , . • • r • • , , • _ g , cs) • (Y) co a • , . • ",---. ..... . . , . . .; ..,. ,. .. . : i '. ; .,. , ... -..,....— 1 1 1 . . .. ..... ,... , .. , .. ... _......:,„ . ... .., i ...i.._.. , „f,,' -40iiitrA, I ... ....... . :,.,. . ...: ,. , — -- - - -- -------.-,-.--.. . . . __:_. ..—... . , . ---.--.-.- : , .....,:... ..„ , ..,.......,..,„ '' :.'.-= - 7 — ' ''' -;--- . - . , - . ' :: -- . - -:',-: -•'• ,•- .-- -- Z. " : "' ' '' ,- Z ..."-I• •• . '' ; -•-'`''' '17: . ..- - -1" 7 .- -” ■•.-, -.. •-' . . '•' . ' ':' ' a' • -;., : '..--F'. - ' ''' '' ''''...'f'''-7.1••••-'5:6,-',.:::.---',IC?;-- '-'''' ' - " .,..., - .- . • - - . . . , . . -, 46',Itle"''54.-•-'?--;T'''''''ZIE`•• ''..-'''-;: , ..f.„1,.- -- ,... 7, i ". ---',, ' . -. :-.--..:-.: . '' . ' I t'. f'•-:: :;.- ' -,i'Y'!..:4A"=":". r'',. ' "" 7 - - -::-' 7 '-'.',;',."' ', •... ..•-•.- .,-: •:-•: • ...;-.:t-..',...,.;:-: ••••,..... - . ' -•..-. ._ , .,..,7','..- .- 1 ,: , ,,l'--. - .,,-; .-,-: -- . . 1 , ' . ':::: ":".'.:''-'--.;;: .."1 - — . -• t--,,'''. .,"...-..., ' 7 :',...'7_ ' L -1 ,.... . ■.,1 .. , ...., .. .,. '.:',,,'• 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 (jc)memo/Disabled and Aged Access Requirements 1 - 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 (jc)memo/Disabled and Aged Access Requirements 2 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 (jc)memo/Disabled and Aged Access Requirements 3 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. (jc)memo/Disabled and Aged Access Requirements 4 • : ,� &: 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 • 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." • 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. •