November 15, 2001
The Honorable Joseph R. Pitts
Member, U.S. House of Representatives
Lancaster County Courthouse
50 North Duke Street
Lancaster, PA 17602
Dear Congressman Pitts:
This is in response to your letter on behalf of your constituent, xxx xxxxxxx xxxxxx, regarding whether sidewalks, and in particular curb ramps, in a residential development built in 1993 must comply with the Americans with Disabilities Act of 1990 (ADA), if plans for the development were approved by local authorities in 1988. Please excuse our delay in responding.
As you know, the ADA prohibits discrimination on the basis of disability by state and local governments (title II) and private entities that operate places of public accommodation or commercial facilities (title III). If the residential development that is the subject of xxx xxxxxx's inquiry was built by a private developer with the expectation that the sidewalks in the area would be turned over to a local government, then title II of the ADA could apply. If, however, the sidewalks at issue were constructed by a private developer as part of a purely private residential development, such as a gated community, the ADA would not apply at all. As noted above, title III of the ADA only applies to private entities that operate places of public accommodation or commercial facilities.
With respect to title II of the ADA, section 15.151 of the regulation implementing title II (copy enclosed) provides that buildings or facilities designed or constructed by, on behalf of, or for the use of a public entity are required to be constructed to be readily accessible to and usable by individuals with disabilities if the construction was commenced after the effective date of title II, which was January 26, 1992. Buildings or facilities that were under design on that date are subject to these requirements if the date that bids were invited fell after the effective date. Sidewalks that are considered "new construction" under this requirement must be designed and constructed with curb ramps. Similarly, when an existing sidewalk is altered by a public entity after January 26, 1992, the public entity must install curb cuts.
Existing sidewalks that are not otherwise being altered are subject to Section 35.149 of the title II regulation, which prohibits a public entity from denying the benefits of its programs, activities, and services to qualified individuals with disabilities because the entity's buildings or facilities are inaccessible to or unusable by individuals with disabilities. A public entity that has responsibility for, or authority over, sidewalks or other public walkways, must ensure that such sidewalks and walkways meet the program access requirement and, when viewed in their entirety, are readily accessible to and usable by individuals with disabilities. This may require the public entity to install curb ramps on an existing sidewalk. In addition, a public entity is required to maintain sidewalks in operable working condition. See section 35.133 of the enclosed title II regulation. The only exception to this requirement permits isolated or temporary interruptions in operation when required for maintenance or repairs of the sidewalks. See section 35.133(b).
I hope this information will be useful to you in explaining the requirements of the ADA. You may wish to inform your constituent that further information is available through our Americans with Disabilities Act Information Line at 800-514-0301 (voice) or 800-514-0383 (TTY). Please do not hesitate to contact the Department if we may be of assistance in other matters.
Ralph F. Boyd, Jr.
Assistant Attorney General
Civil Rights Division