By John W. Egan
One common misconception about the design and construction requirements of the Americans with Disabilities Act (ADA) is that historical landmarks are exempt. Another is that the ADA does not apply when an element is merely replaced. A recent decision by a New Hampshire federal court dispels both of these notions.
At issue in Davis v. John S. Ciborwski Family Trust was Phenix Hall, a historic building in Concord, New Hampshire. Listed in the National Register of Historic Places, Phenix Hall was the site of theater productions, local fairs and political speeches in the nineteenth and early twentieth centuries, including a speech by President Lincoln in 1860. It now houses several retail stores.
The owner of Phenix Hall, the John S. Ciborwski Family Trust, decided in 2010 to restore the storefront to its original historic appearance. The project included replacing the steps at the entrances, replacing and centering the doors, removing the then-existing 1950’s façade and restoring the original granite façade, as well as clean-up and painting of various exterior elements.
Plaintiffs filed suit under Title III of the ADA against the Trust and the retail establishments located in Phenix Hall. In deciding cross motions for summary judgment, the Court held that the 2010 renovation was an “alteration” as defined by the ADA.
The ADA provides that a covered alteration is one that affects or could affect the usability of a building or a part thereof. The regulations promulgated by the Department of Justice that construe the ADA provide a wide-ranging list of examples of covered alterations: remodeling, renovation, rehabilitation, historic restoration, and changes or rearrangements in structural parts or elements. The regulations also state what alterations are not covered: repainting, reroofing, wallpapering, removal of asbestos and changes to electrical systems, so long as they do not affect the usability of the building.
In Davis, the Court determined that the modifications to the entrances, including modifying the door location and replacing external elements at the storefront, were alterations covered by the ADA. In addition to the definition of a covered alteration in the regulations, the Court relied on the “forward-looking” purpose of the statute. It opined that an owner should not be allowed to “avoid Title III in perpetuity, even when making major structural changes to a facility, simply by replacing existing elements, unusable by disabled persons, with new elements, equally unusable by disabled persons.”
This case serves as a reminder that virtually all renovation projects involve alterations that are covered by the ADA and any alterations must comply with the 2010 Standards for Accessible Design “to the maximum extent feasible.” This standard generally does not take into account cost or the resources of the owner or operator.
Under the regulations, even alterations to buildings listed in the National Register of Historic Places must comply with the ADA to the “maximum extent feasible.” If, however, complying with the 2010 Standards would threaten or destroy the historic features of the building, then alternative methods of access may be provided in accordance with the strict procedures outlined in the regulations.
In addition, it is crucial to understand that a covered alteration to a facility may trigger a need to make other parts of the facility accessible as well, even if there was no plan to alter those other areas. If a business makes an alteration to an area where a major activity takes place for which the facility is intended (a “primary function” area), then the “path of travel” to this area and the telephones, restrooms, and water fountains serving this must be made accessible as well, subject to a monetary cap of 20 percent of the alterations budget. Failing to comply with this “path of travel” requirement is a common mistake that we see in our practice.