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April News
Streaming Videos from DOJ's Civil Rights Division The US Department of Justice Civil Rights Division has added two streaming video presentations to their web site. They are: Ten Small Business Mistakes and the July 26, 1990 ADA Signing Ceremony. These are available in open caption and audio described versions. They are accessible via either dial-up or a broadband Internet connection. The videos are in Real and QuickTime formats. There is a link to the "ADA Video Gallery" on the ADA Home Page and also on the What's New page. Source: www.ada.gov/new.htm Developer Sues Town on Apartments By Sara Lindau, Staff Writer A Charlotte-based developer has filed a lawsuit against Southern Pines seeking to toss out a moratorium on new rental units and a related ordinance the council is considering to limit the size of apartment developments. Town Attorney Douglas Gill filed an answer to the suit last Tuesday in Moore County Superior Civil Court, denying the allegations in the suit and stating that town officials never assured Austin's Ridge, a developer of low-income housing units, that its project would be allowed. The Town Council imposed a moratorium on new apartment complexes in October 2004. It is set to expire May 17. The council could vote to lift the ban earlier. The council is considering a proposed amendment to the zoning ordinance that would limit the size of new apartment developments and outlaw large, high-density complexes. It would also require that any new apartment developments that meet the proposed requirements be at least 500 feet apart. A task force appointed by the council and the Planning Board to study housing needs and patterns recommended the proposed ordinance. Members of the task force concluded that the town has more than enough apartment complexes, but lacks adequate single-family housing. The Planning Board voted last month to recommend that the council approve the ordinance amendment. The suit filed by Judson Welborn, a Raleigh attorney who represents Austin's Ridge, asks that a Superior Court judge issue a permanent injunction to bar the town from amending its ordinance, on grounds that the company will suffer irreparable damages because of expenditures already made in the belief that the development would be approved. It accuses Southern Pines of singling out low-income housing and of "discriminatory" practices that could deny low-income people affordable housing in town and in the process violating federal and handicapped fair housing laws. Welborn's complaint alleges that the town had "motivations" that violate the defendants' right to the equal protection clause of the 14h Amendment to the Constitution. The effect of the zoning amendments would have an "unlawfully discriminatory effect in light of the significantly adverse and disproportionate impact (the town's) actions and conduct have had, and will have on persons of protected classes ... that defendants are impermissibly denying persons of protected classes access to affordable housing in the town of Southern Pines." The complaint accuses the town of harming the community by the "perpetuation of segregation," violating the FHA's (Federal Housing Administration's) policies requiring fair housing without discrimination. It alleges violation of both FHA and Americans With Disabilities Act (ADA) requirements that municipalities "refrain from zoning policies that effectively foreclose the construction of low-cost housing within the municipality." The complaint alleges the officials acted in an "arbitrary and capricious manner" and that there was "no rational basis for the ... action in singling out a small number of property owners such as the Plaintiff." 60 Units Planned The town hasn't issued a building permit to Austin's Ridge for construction since it wasn't far enough along to consider, said Planning Director Bart Nuckols in a Tuesday telephone interview. Nuckols wrote a letter to the developer about the town's ordinances for the RM-2 Multifamily Zoning District, which allows a density of more than six units per acre. He wrote that its application for permits to build in that zoning district where multi-family is allowed did not require a public hearing. Austin's Ridge wanted to build a 60-unit low-income apartment complex, using federal and state tax credits to get construction loans. The company had contracted to purchase almost 10 acres in the Henson Road-Saunders Boulevard area off U.S. 1. The council decided in October 2004 to consider the moratorium and the limitations on big apartment complexes such as Austin's Ridge. The Town Council is scheduled to hold a public hearing on the proposed zoning ordinance amendment at its Tuesday, March 8, meeting. If the council votes to change the ordinances, the moratorium would be lifted. If the town doesn't act by May 17, the moratorium would expire automatically. Mayor Pro Tem Fred Walden, the only black member of the council, served on the task force that recommended the proposed ordinance amendment. Veola McLean, who lives in West Southern Pines, also served on the task force. She has been outspoken in asking the council not to encourage any more large-scale, low-income housing complexes similar to several existing ones in West Southern Pines. The task force said in its report that Southern Pines has a glut of apartment complexes, some of them very new and with high vacancy rates. Southern Pines Police Chief Gerald Galloway also said crime was a problem in the high-density, low-income housing developments in West Southern Pines, with the exception of Longleaf, which has strict management and has made improvements. Damages Sought Welborn filed the lawsuit in Moore County Superior Court in December. It alleges that the moratorium the two bodies jointly declared Oct. 25 following a public hearing violated their right to due process and is prejudicial to the low-income housing that the company specializes in building. The suit said the company has spent money and obtained financing through federal and state tax credits that in turn allowed Austin's Ridge to borrow $799,689 for construction. The company had been approved for a federal and state tax credit-assured loan through the North Carolina Housing Finance Agency, according to the suit. The complaint alleges that the company paid $22,395 to get the tax credit from the North Carolina Housing Finance Agency. The complaint seeks compensatory and punitive damages from the town, on grounds it has spent money to enter into a purchase contact for the land and on related engineering and other fees upon the belief it would be assured of getting the necessary permits to build. Welborn's complaint alleges that the company would also be jeopardized in securing future tax credit-based loans for other housing projects and would have to repay some monies by accepting the loan. Welborn is asking for a jury trial if the judge doesn't issue the permanent injunction to prevent the town enforcing the ordinance amendment. The suit also asks a judge to declare the town's actions, including its amendment and the ordinance changes null and void, and to order the town to issue permits needed to build. Violated Notice Rules The complaint alleges the town violated public notice ordinances and procedures, giving insufficient public notice of the nature of the amendments and of the public hearing at which both bodies voted to impose the moratorium. The only speakers favored the moratorium. Austin's Ridge hadn't had the opportunity to speak on the moratorium, which would affect its development. While a notice of the hearing had been published in The Pilot, it was not done as far in advance nor in the frequency required by the town's own ordinances, the suit said. It complains that some town documents refer to the need to ensure "open space" as the reason for tinkering with apartment densities and size requirements, but that the town's real intent was to single out low-income housing for discrimination. The complaint says the company "received first notice of the purported amendment to the UDO (Unified Development Ordinance) on Oct. 27, 2004, when a representative of the town in the course of business informed the engineering consultant of the passage two days earlier of the amendment and the moratorium." Despite the moratorium, Austin's Ridge has worked on permits for water and sewer service, driveway access and other routine matters, incurring more expenses, according to the suit. Source: The Pilot (Pinehurst, NC), 3/2/05. Access Board Reports Hearing on Draft Guidelines for Passenger Vessels On January 10th, the Board held a public hearing on guidelines for passenger vessels it is developing under the ADA. The event allowed the public to provide feedback on materials the Board released in November, including draft guidelines for large vessels, such as cruise ships, and a notice outlining several different options on addressing access to smaller vessels, such as water taxis and excursion boats. Representatives from a variety of interested organizations provided testimony at the event. Participants included members of associations representing the passenger vessel industry, cruise line and charter boat operators, naval architects and marine engineers, accessible travel and hospitality services, and persons with vision impairments. Regional boating organizations, transit districts, and water taxi lines also provided comment. Comment was received on provisions concerning large vessels, small vessels, and the distinction drawn between them. As drafted, the guidelines for large vessels would apply to vessels designed to accommodate more than 150 passengers or 49 overnight passengers. Issues were raised about relying solely on passenger count to draw a line between large and small vessels. With respect to small vessels, support was expressed for covering access as recommended by the Board's. Passenger Vessel Access Advisory Committee, an option under consideration as outlined in the notice. This option would apply a limited set of access requirements to small vessels, make a distinction between power and sailing vessels, and cover power vessels more specifically in relation to size. Commenters also addressed specific elements of accessibility, including elevators, platform lifts, and alarms, as well as access issues such as proper accommodation of service animals and way-finding systems for passengers with vision impairments. A common concern expressed at the hearing was the need for more time to the published materials and to provide detailed comments in writing. In response, the Board plans to extend the comment deadline an additional four months from March 28th to July 28th. The Board plans to hold additional hearings on both the east and west coasts during the comment period. Their dates and locations will be announced in coming weeks. 
For more information, visit the Board's web site. . .
. . . or contact the Board at 202/272.0012 (v), 202/272.0082 (TTY), or by e-mail.
High Court Hears Case on Foreign Cruise Ships On February 28th, the US Supreme Court heard oral arguments on whether the Americans with Disabilities Act (ADA) applies to foreign flag cruise ships operating in US waters. Such vessels comprise the vast majority of the cruise industry's operations. Lower courts have ruled differently on this question. The case before the court, Spector et.al. v. Norwegian Cruise Line Ltd., involves a Circuit Court ruling that the ADA does not expressly state coverage of foreign flag vessels. A decision is expected to be handed down by July. Board to Propose Guidelines for Outdoor Developed Areas This summer, the Board plans to propose new guidelines for outdoor developed areas, including trails, beach access routes, and picnic and camping sites. The guidelines will be responsive to the need for greater guidance in this area since issues of terrain and limited levels of site development have raised many questions on how, and to what extent, access is to be achieved. The upcoming proposal will focus specifically on outdoor developed areas owned or managed by the Federal government. Once published, it will be available for public comment. The proposed guidelines will include detailed criteria for newly constructed and altered trails that will cover running slope or grade, cross slope, width, surface, passing space, edge protection, and signs. Provisions will also address beach access routes and elements of picnic and camping sites, including picnic tables, fire rings, cooking surfaces and grills. The specifications will be based on consensus recommendations from an advisory body the Board had previously chartered, the Outdoor Developed Areas Regulatory Negotiation Committee. In developing new guidelines, the Board typically must complete a comprehensive assessment of their estimated costs and impacts. This necessary step can be challenging in rulemaking that breaks new ground by covering access to areas not previously addressed by an accessibility guideline or standard. This has been especially true in the case of guidelines for outdoor developed areas, which have been delayed due to work involved on completing a cost assessment. Determining the number and range of outdoor sites across the country that would be impacted by new guidelines when developed or redeveloped has been particularly challenging. In order to keep the process on track while assessment of the cost proceeds, the Board has opted to conduct rulemaking specifically in relation to Federal lands, such as national parks. The upcoming proposal will specifically address access to sites covered by the Architectural Barriers Act, which requires access to federally funded facilities. The associated cost assessment can be completed more readily since the area of coverage is more distinct and identifiable and since Federal agencies responsible for public lands have greatly increased their data collection and management procedures over the past couple years. The Board intends to build on this work with a follow up rulemaking devoted to non-Federal sites owned or operated by state and local governments or private entities subject to the Americans with Disabilities Act (ADA). Information collected during and through the rule-making on Federal lands will be used to advance the follow-up effort on ADA-covered sites. For further information, contact Bill Botten at 202/272.0014 (v), 202/272.0082 (TTY), or botten@access-board.gov (e-mail). U.S. Forest Service Initiates Effort to Implement Interim Criteria The US Forest Service is in the process of implementing a directive that would address access to lands under its management. In a notice published in the Federal Register on February 17th, the Forest Service outlined its plan to apply guidelines based on recommendations from the Board's Outdoor Developed Areas Regulatory Negotiation Committee and supplemented by the Forest Service to ensure the agency's continued application of universal design, as well as agency terminology and processes. The published notice, which is available for public comment until April 18th, describes how the guidelines would be applied to new or reconstructed outdoor recreation facilities and trails on National Forest Service lands. The Board intends to work cooperatively with the Forest Service so that the guidelines for Federal outdoor developed areas, including the Forest Service's guidelines, can be completed and finalized jointly by the end of the year.
For further information on the Forest Service, visit its website. . .
. . . or contact Janet Zeller of the Forest Service at 202/205.9597.
Courthouse Access Advisory Committee Meets in Phoenix The Courthouse Access Advisory Committee held its second meeting February 10th and 11th in Phoenix. Members toured area courthouses, including a new municipal facility and a Federal courthouse, to see how accessibility was addressed. They were also briefed on access surveys of 35 courthouses conducted by the Arizona State Bar Association's Task Force on Persons with Disabilities. The meeting also featured presentations by architects on the committee on courthouse design, including traditional and customary courtroom features, and recent courthouse projects. The committee's charge centers on promoting access to courthouses, which pose unique design challenges, by identifying issues and barriers, developing solutions and best practices, gathering resources, and exploring ways to disseminate the information it develops most effectively to various audiences. The committee's members include designers and architects, disability groups, members of the judiciary, court administrators, representatives of the codes community and standard-setting entities, government agencies, and others with an interest in the issues to be explored. Three subcommittees organized at the committee's first meeting in November met in separate sessions. The subcommittees on education, courtroom access, and courthouse spaces other than courtrooms discussed ways of conducting sessions and sharing information in between meetings of the full committee, which are scheduled to take place on a quarterly basis. Subcommittee chairs provided reports on their discussions to the full committee. The committee also approved meeting dates and locations for the remainder of the year. This tentative schedule includes meetings in Washington, D.C. (May 5th and 6th), Chicago (August 4th and 5th), and San Francisco (November (17 and 18th).
For further information on the committee or its meetings, contact Elizabeth Stewart at 202/272.0042 (voice), 202/272.0082 (TTY).
To be added to the list for e-mail updates on the work of the committee, send a message.
Results in from Study on Wood Fiber Surfacing for Play Areas Reports are available on the results of a study the Board has sponsored on engineered wood fiber, a popular material for playground surfaces. This study explored the use of certain treatments that can be used to enhance its accessibility while remaining soft enough to cushion falls. Conducted by the U.S. Forest Service's Forest Products Laboratory in Madison,WI, this study involved full-scale field assessments of surface stabilizers deemed most effective in earlier phases. The tests were conducted over a 10-month period in state parks in Wisconsin. The results, as outlined in the report,"Stabilized Engineered Wood Fiber for Accessible Playground Surfaces", indicate that one type of binding agent was sufficiently effective in meeting the dual demands of pliability and firmness while holding up to outdoor exposure during the test period. A companion study was conducted on trail surfaces. 
The reports
FHWA and Board Work to Improve Pedestrian Safety The Board and the Federal Highway Administration (FHWA) are working to develop specific criteria for pedestrian channeling devices that will help guide pedestrians with vision impairments through work zones that encroach on sidewalks and crosswalks. It is important that such pedestrians be able to safely and independently navigate alternate or restricted pedestrian routes. Various types and designs of channeling devices can help compensate for the temporary absence of well-defined sidewalks at work zones. In February, both agencies, along with the American Traffic Safety Services Association, held a day-long evaluation of 19 different products, ranging from the traditional, such as barricades, to the more hi-tech, such as auditory devices. The event enabled manufacturers to demonstrate their products and allowed individuals with disabilities to try them out in a controlled setting and to provide feedback. Most of the input received involved suggested changes that in most cases would be easy and inexpensive to implement.
For further information on the event, contact Hari Kalla of the FHWA at 202/366.5915.
DOJ Extends Comment Deadline for Notice Updating ADA Standards Last September, the U.S. Department of Justice (DOJ) issued for public comment an advance notice of its intent to update its ADA standards based on guidelines the Board published in July. This notice, which seeks input on various issues related to the implementation of new standards, originally set a comment deadline of January 28th. DOJ has extended this deadline to May 31st so that the public has more time to provide feedback on the issues raised. Topics raised in the notice include how much lead time should be provided before the updated standards take effect, issues concerning existing facilities (which are otherwise not covered by the Board's guidelines except where altered), questions concerning specific types of spaces and equipment, and DOJ's process for certifying state and local codes under the ADA. The information sought from the public through this advance notice will be used by DOJ in proposing a follow-up notice that will also be made available for comment before it is finalized. The notice, which includes instructions on submitting comment, is posted on DOJ's web site. Questions about this notice should be directed to DOJ at 800/514.0301 (voice) or 800/ 514.0383 (TTY). "Access Currents" is a free newsletter issued by the Access Board every other month by mail and e-mail.
Send questions or comments or call 800/872.2253 ext. 0026 (voice) or 800/ 993.2822 (TTY).
Mailing address: 1331 F Street, NW, Suite 1000; Washington, D.C. 20004-1111.
Source: Access Currents, Vol.11, #1 January / February 2005 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
