Guidance lacking for on-street disabled parking

The 9th U.S. Circuit Court of Appeals recently ruled in Fortyune v. City of Lomita, 2014 DJDAR 12344 (Sept. 25, 2014), that the Americans with Disabilities Act requires cities to provide on-street parking that is accessible to people with disabilities. Though handicapped parking is commonplace, the existing design standards only govern parking within facilities, not on-street parking. Fortyune is the first case to find an obligation under the ADA, even in the absence of corresponding design standards.

The plaintiff in Fortyune was a paraplegic who alleged that he experienced "great difficulty, discomfort, and even fear for his safety" because of a lack of accessible on-street parking. The city moved to dismiss the complaint, arguing that, without specific regulations targeting on-street parking, the city could not have any obligations under the ADA. The 9th Circuit found that, despite the lack of accessibility standards, on-street parking is a normal function of a city and therefore must be made accessible. In essence, the decision in Fortyune interprets the ADA as requiring a general obligation to make all public services accessible, and therefore it is not limited to specific regulations.

The U.S. Department of Justice is responsible for developing regulations to implement the ADA. As part of this duty, the DOJ adopts specific technical and scoping standards for the design and construction of public facilities. All public facilities that have been constructed or altered since 1991 - when the ADA regulations first became effective - must be built and constructed in conformance with these standards.

In addition to guaranteeing equal access to disabled citizens, the standards also provide a benefit to cities and other public agencies by essentially creating a safe harbor for compliance with the ADA. In most instances, a public facility's obligations under the ADA are clear. For example, the standards require that parking lots have a certain minimum number of handicapped parking spaces, that each handicapped space be served by an access aisle, and that all handicapped spaces be located nearest to the facility they serve. A city that operates a parking lot is able to ensure compliance with the ADA by following these standards.

However, the standards do not necessarily translate to parking that is provided on a street. On a street, the parking may be intended to serve various facilities throughout the area. Additionally, the existing standards for parking lots do not address parallel parking. Without enforceable standards, it is not clear what steps must be taken to provide adequate service under the ADA.

Eventually, the DOJ is likely to provide some guidance on this issue. The department must adopt standards that are consistent with guidelines established by the Access Board, an independent federal agency that is charged with developing accessible design criteria for the built environment. The Access Board consists of 25 members. Twelve members are from federal agencies, and the other 13 are from the public at large. Half the public members must have some form of disability.

Since the adoption of the ADA in 1990, the Access Board and the DOJ have sought to develop specific standards for an increasing variety of public facilities. The Access Board developed the original ADA Accessibility Guidelines in 1991, and adopted an updated version in 2004. The updated version addressed a number of facilities for which no previous requirements existed, including recreation facilities, such as swimming pools, boating facilities and amusement rides. The Access Board's 2004 ADA Accessibility Guidelines were adopted by the DOJ in 2010.

The Access Board is currently in the process of developing additional guidelines for public rights-of-way, and the draft guidelines contain proposed requirements for on-street parking. The draft requirements are limited to public parking that is "marked or metered," and therefore do not impose design standards on all public streets. In the draft guidelines, the number of required handicapped spaces is based on the total number of parking spaces on each block perimeter. And there are design specifications for accessible parallel parking. Depending on the size of the adjacent right-of-way, parallel parking may be required to have an adjacent access aisle if the sidewalk is altered or newly constructed. Where the right-of-way is not large enough to accommodate an access aisle, or where the sidewalk is not altered, accessible parallel parking must be at the end of the block face.

The Access Board's process for developing guidelines for public right-of-way began in 1999 and draft guidelines originally were proposed in 2002. Public comments on the guidelines were closed in 2012, and final adoption is imminent. However, the guidelines will not become enforceable standards unless and until they are adopted by the DOJ, and there is no timetable for the DOJ's action.

Until there are enforceable standards for public rights-of-way, the ADA's requirements will remain murky. To date, there has been little guidance from the courts. Because the issue in Fortyune came up to the 9th Circuit on a motion to dismiss, the court merely opined on whether the plaintiff's case could proceed beyond the pleadings stage. The court did not consider whether any specific conditions constituted a violation of the ADA. Given the limited nature of the ruling, Fortyune does not provide any insight into whether any particular design satisfies the requirements of the ADA.