While cities across the nation have faced litigation from disability advocacy groups charging their sidewalks are not compliant with Title II of the Americans with Disabilities Act (ADA), a lawsuit filed by two Sacramento, Calif.-based groups against the California Department of Transportation (CALTRANS) is the first suit to seek corrections to a state's entire sidewalk system. Municipal leaders agree that accessibility is important, but many are concerned that the cost to immediately bring all sidewalks into compliance would be onerous.

In August 2006, Disability Rights Advocates (DRA), the Berkeley, Calif., law firm representing Californians for Disability Rights (CDR) and the California Council of the Blind (CCB), filed a state and federal class action lawsuit against CALTRANS. Because CALTRANS did not consent to the state case being heard in federal court, DRA refiled a separate lawsuit in state court in March 2008.

In both suits, the advocates seek injunctive relief to eliminate access barriers for physically and/or visually impaired pedestrians on all of the approximately 2,500 miles of sidewalks under CALTRANS' jurisdiction. That includes installing or repairing curb ramps at intersections, removing sidewalk obstacles such as light poles, repairing broken or uneven pavement, and widening some sidewalks.

The outcome in the CALTRANS case may hinge on a precedent set by another DRA lawsuit from 1999 against Sacramento, in which the organization wanted the city to install ADA-compliant curb ramps. In that case, DRA claimed that city sidewalks are a service, program, or activity of local government and must, therefore, be made immediately accessible. While the initial court ruled that sidewalks are not city programs, the 9th Circuit Court of Appeals reversed that decision. Sacramento settled the case in 2003.

If the court continues to find that sidewalks are programs of cities, then the date they were built is irrelevant with regard to litigation, says Arlington, Texas, Assistant City Attorney Denise Wilkerson. But, if sidewalks are deemed a facility, under ADA there is a two-year statute of limitations on that built facility. In July 2005, Arlington was sued in federal court for deficient sidewalks, curb ramps or parking facilities inaccessible to disabled persons. In that case, sidewalks were not determined to be a program or service, and the case was dismissed because the statute of limitations had expired.

The Washington-based National League of Cities (NLC) maintains that defining sidewalks as “programs” of local governments is inaccurate and would place undue financial burdens on city budgets. “[Improving sidewalk access] must be balanced with the reality of limited public resources and respect that parties may disagree about the speed with which improvements are made,” said NLC Executive Director Donald Borut in a statement.

Some cities are taking steps to make their neighborhoods pedestrian friendly. Cambridge, Mass., has created a disabilities commission that works with all city departments to meet the needs of disabled residents, says Jeffrey Parenti, Cambridge's Traffic Engineer. “To say ADA is important in Cambridge is a gross understatement,” he says.
— Annie Gentile is a Vernon, Conn.-based freelance writer.