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Home My WebLink About2/6/2018 Item 12, Schmidt (4) Christian, Kevin From:Richard Schmidt <slobuild@yahoo.com> Sent:Friday, February To:E-mail Council Website Subject:Item 12: ADA conflicts Attachments:council ADA jan 18.pdf Dear Council Members, Please be aware the "preferred" alternative confronts civil rights protected by the Americans With Disabilities Act, a federal civil rights law. Please see attached. Richard Schmidt 1 Re Broad/Chorro Cycle Track: Civil Rights Implications Jan. 30, 2018 Dear Council Members, This note is opens a different window thorough which you must view the proposed cycle tracks. Whatever else it may do, the “Anholm” cycle track project affronts the Americans With Disabilities Actʼs provisions requiring your cityʼs providing inclusion for the disabled to the full range of civic and personal life. Iʼd like to explain to you why this project puts the city on tenuous ethical and legal ground and could backfire. Note, I am not an attorney constructing a court argument, but a historian experienced in reading and making sense of documents and relaying that sense to others. The ADA was passed in 1990 as an adjunct to the 1960s federal civil rights laws to fill a gap – the need for explicit protection of civil rights of the differently-abled. Disability is broadly defined – physical, physiological, medical, congenital, emotional, intellectual, etc. are all covered. Note also that contrary to common belief, the ADA is not a building code or prescriptive set of solutions – it is a federal civil rights law, to assure the fundamental rights of life, liberty and pursuit of happiness, and it is typically litigated in federal, not state, courts. Through such litigation many of its bounds have become “settled law” and it applies to the proposed cycle tracks and their impacts on the disabled. While most popular ADA awareness concerns public accommodations and employment issues, Title II of the ADA applies to cities, and itʼs reach is impressive. The law speaks to city programs, services and activities, and court clarifications have established the ADA applies to “anything a public entity does.” So itʼs reach over what you do is very broad. The premise of Title II is a city must do whatever it can to accommodate the needs of the disabled throughout all of its programs and services. Any city project must make accessibility better, not worse. The city must provide accessible linkages, where needed, between its services; in other words, making services individually accessible is not enough if one service doesnʼt link smoothly to another. An example: streets and sidewalks are both city services, and they must link in ways to make disabled access functional. Federal courts have ruled on-street parking is a city service subject to the ADAʼs accessibility requirements. It is clear from these court decisions that a city offering on-street parking as a service, which SLO does, must offer accessible on-street parking as an accommodation where needed or requested. This issue went all the way to the US Supreme Court, which let our 9th circuit courtʼs ruling stand without review, so it is the law of the land. My Thoughts on Above. There are a number of ways the “preferred” alternative bike tracks affront the ADA. 1. All city projects must improve accessibility. This one does not. In fact, it takes away long- standing accessibility residents have always been provided along its route. 2. The city has long offered street parking in its neighborhoods. The existence of this particular neighborhoodʼs street parking at its current parking density provides de facto “reasonable accommodation” for access between city service (streets) and city service (sidewalks) to provide direct accessibility from street-parking-to-home for persons who cannot provide safe or functional on-site accessible parking. Is anything a more fundamental civil right than the right to access oneʼs home? Now the city proposes to take that accessibility away in only ONE neighborhood to provide bike facilities that are legally subordinate to the ADAʼs accessibility mandate: • for those with cycle tracks in front of homes, all possibility of direct access from street parking is taken away; also, all possibility of direct access from home to paratransit (like Ride-On) is taken away (Where would paratransit stop/load/unload if a cycle track and traffic lane are all there is in front of a home? Can you picture paratransit vans on Broad blocking both traffic lanes due to needing to park far enough out from the cycle track to load/unload from a side door?); • for others, including those on the nearby “parking streets” where staff claims those who lose parking can park, competition for insufficient parking spots will de facto take away existing reasonable access for residents of those streets not directly impacted by the cycle tracks. • These changes de facto make it virtually impossible for the disabled to live in many homes. The city cannot escape the civil rights implications of this accessibility takeaway with a curt “itʼs their own fault if they canʼt park on their own property.” 3. Meanwhile, the city proceeds with a project that diminishes existing reasonable accommodation disability access and improves access in no way at all1 which is in direct confrontation to the ADAʼs requirement city projects must include and improve access. 4. Combined with insensitive comments from staff like having to park 1,000 feet from home being merely “inconvenient” for the disabled, and the cityʼs lackluster cumulative record providing various sorts of accessibility, one would conclude that at best the city is under- informed about accessibility requirements, or at worst the city has disregard for disability rights. Neither is a legal excuse. A court reviewing the project under the ADA would draw its own conclusions about this project in the context of such history. 5. Allusion in the staff report to the cityʼs maybe being willing, after removing half the neighborhoodʼs parking, to possibly grant reasonable accommodation to affected residents if after reviewing personal and medical data itʼs not entitled to review it should decide to do so, at best only makes parking worse for everyone else by taking away still more generally- available parking spots to provide designated disabled spots. Of course, even this quasi-offer of accommodation is null and void for anyone with a cycle track in front of their home; requiring a disabled person to park across one of these busy streets, which is the closest place parking could be, is not reasonable accommodation. The best accommodation is not to diminish the number of parking spots in the first place by proceeding with some other project design that requires no parking removal. 1 Even the promised neighborhood curb cuts the city has dawdled providing since prior to 1990 are unscheduled at this time – but will be considered sometime after 2022. Amazing since this is arguably the most senior-dense neighborhood in the city. Iʼd therefore caution that proceeding with the proposed project could precipitate a federal civil rights lawsuit youʼre unlikely to win. Just the necessity of a disabled personʼs filing such suit would tarnish the cityʼs reputation as well as the reputations of council members who voted to precipitate such a suit after receiving this friendly warning. An ethical city would never treat its elderly, frail and disabled residents this way, nor would a kind city. Remember the hierarchy here: in attempting to provide a bicycle facility some people “want,” you would denigrate and deny the civil rights of others less physically fortunate than cycle track users. “Wants” versus protected “civil rights” is not something you can “balance” away. The legal hierarchy is clear: This collision of opposing interests means that if providing for the “wants” you MUST protect the “civil rights.” This project does the opposite – it caters to the “wants,” and takes away existing and future “civil rights.” Therefore, this project is the wrong way to satisfy the “wants” in this neighborhood. It reaches the wrong legal and ethical balance between “wants” and civil rights. You must come up with a neighborhood bike plan that does not trample civil rights. The best way to do that is to plan a project that does not take away already scarce residential street parking in a dense neighborhood thatʼs full of seniors and disableds. Or, if determined to push ahead, you must be prepared for the political and legal consequences, which are likely to go far beyond what you can imagine. Precipitating a federal civil rights lawsuit means you risk at the very least a court decision taking away your ability to remove parking in a neighborhood now and in the future. And if that happens, remember the courtʼs decision will also apply to other cities within the courtʼs jurisdiction, and those cities and their bicycling constituencies may be very ticked off at the City of San Luis Obispo for creating an avoidable legal confrontation that curtails what they can do. I donʼt know why youʼd want to risk that outcome when there are better biking solutions than the “preferred” one before you that do not trample civil rights. Rejecting this project is the smart thing to do, the ethical thing to do, the kind thing to do, and the right thing to do. A good city does not make losers out of its weaker residents so it can privilege an unnecessary, disruptive and entirely optional project. Richard Schmidt