Suing for Sidewalks – Next City

Photo by Adam Wesley; republished with permission © 2015 The Gazette, Cedar Rapids, Iowa

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Suing for Sidewalks

Despite a robust Complete Streets movement and a growing emphasis on accessible design, the surest path to ADA compliance in America is still through legal threat.

Story by Anna ClarkTwitter

Published on Jun 13, 2016

The city nearly drowned. In the warm days of mid-June, about 160 years after the old river town was incorporated, Cedar Rapids, Iowa, was hit with the worst flood in its history. One of those 500-year floods that no one thinks they’ll ever see. The kind of flood that evokes allusions to Noah, or Katrina.

The Cedar River swelled to 31.12 feet deep, more than 11 feet higher than the previous record set in 1851. Ten square miles, or 14 percent of the city, was underwater. City Hall, the county courthouse, the federal courthouse and the jail, all built on Mays Island in the middle of the river, flooded up to their second floors. At the public library, the entire adult and reference collections were lost. About 10,000 people (in a population of 128,000) were displaced.

How do you rebuild a city after that? For the last eight years, Cedar Rapids has been trying to figure out the answer — and, as it turns out, it doesn’t mean recreating things exactly how they were. Instead, Cedar Rapids is building a city for all of its residents.

A generation after the Americans with Disabilities Act, cities across the United States are still broadly inaccessible to many who live in them. Broken sidewalks and steep curbs endanger people who are blind or use wheelchairs. A lack of communications technology, like computer-to-telephone emergency services, prevents a resident with a hearing or speech impairment from calling 911. According to 2010 census data, 56.7 million Americans have a disability. Yet, infrastructure that many citizens barely notice presents barriers and sends a disturbing, albeit inadvertent, message to their neighbors: You don’t belong here.

There is an expansive list of think tanks, experts, publications, model policies and planners with a wealth of expertise about the worth of manifesting the ADA in cities. The Complete Streets movement encapsulates the notion of “streets for everyone,” including those of all ages and abilities, and to date, 899 entities — mostly municipalities — have signed on to its vision of accessible and multimodal communities. They are in all 50 states, Puerto Rico and the District of Columbia. Eighty-two communities passed Complete Streets policies just last year.

But as Yochai Eisenberg at the University of Illinois at Chicago’s Center on Health Promotion for Persons With Disabilities puts it, Complete Streets projects tend “to happen in locations that are beneficial to economic development.” There are good reasons for that, but it also means that residents “may not be getting infrastructure there to help get people from their houses to the bus stop,” he says, as an example of the remaining gaps.

For all the think-tanking and good intentions, when it comes to universal design, the most effective urban planning tool appears to be the threat of legal action. That’s the case in Cedar Rapids, where just a few years after the devastating flood, the Department of Justice began questioning the city’s overall ADA compliance. The initial call came in 2011, and it took Assistant City Manager Sandi Fowler by surprise. “I thought, Oh my gosh, it’s one more thing. We’re kind of up to our necks here,” she says. But by 2015, Cedar Rapids had signed a $15 million settlement agreement to rebuild as a truly accessible community.

On a much larger scale, Los Angeles last year pledged to spend $1.3 billion over three decades for massive infrastructure improvements — including fixing notoriously crumbling sidewalks — to meet ADA accessibility standards. That too came out of a legal settlement, though this one was initiated by citizens and advocacy organizations. It appears to be the largest settlement of its kind in U.S. history, destined to not only transform the urban landscape, but also the way that priorities are set in City Hall.

The Cedar Rapids City Hall flooded up to the second floor in 2008. (Photo by Davumaya)

The trajectory of both cities suggests a long-term commitment to inclusivity for all residents. But a close look at what’s happening in each community points to what city leaders nationwide should be thinking about before they are sued, and before the DOJ comes knocking. Citizens with disabilities can no longer be an afterthought.

Where the Sidewalk Abruptly Ends

Sandi Fowler has been a city employee for 26 years in Cedar Rapids. She believes that cities should “just run” with enough ease as to be almost invisible. But the 2008 flood dramatically changed what that looks like for her. “I have to think that it’s not just me that thinks of things pre-flood and post-flood,” she says. “Devastation of that kind is unfathomable.”

In all, the flood cost $6 billion in damages. The public works building, central fire station and police station were all destroyed; in total, 310 city facilities were damaged or lost. In the intervening years, the city has purchased 1,400 homes in a buyout program, and then razed the houses to create an open floodplain.

Fowler is tasked with designing the new city facilities for the future of Cedar Rapids. It’s a process that began years ago, but is still unfolding; the finishing touches are now being put on a recreation center. By February 2011, nearly three years after the flood, city workers were still in temporary facilities. “We prioritized our facilities last,” Fowler says. “Citizens first, then business, then our own needs.”

That’s when the DOJ knocked on their door. Despite her initial surprise, Fowler soon realized that the investigation, combined with the flood recovery, presented an unusual opportunity. Most of the city’s redevelopment was still in its planning stages. The DOJ architect could review the plans of local architects for ADA compliance. It set a high-level expectation for contracted builders to prioritize accessibility at the outset, and it gave local architects an entry point to an expert who could troubleshoot with them.

“Having been a longtime city employee, I can tell you every building built in the last 25 years,” Fowler says. “There are not very many. Cities tend to stay in their buildings a long, long time. [Building or rehabbing new ones] is not where they want to spend money. So we had a unique opportunity to make sure we’re building back right.”

It’s a kind of intensive educational opportunity for hundreds, perhaps thousands, of people.

Tai Tomasi is a 35-year-old staff attorney with the Des Moines-based Disability Rights Iowa, a statewide legal advocacy organization. It also does outreach to bridge what Tomasi calls “the disability knowledge gap.” And for her, it’s not just a job. It’s personal.

Tomasi lived in Cedar Rapids for several years, and as someone who is blind, found sidewalk accessibility to be a problem. Particularly around homes and buildings built before the ADA, there were either no walkways, or they abruptly ended, leaving her with no way to see where the sidewalk picked up again, she says.

Maintaining accessible walkways and curb ramps over the long-term in the Iowa climate is “an uphill battle,” Fowler says. She says the freeze-and-frost cycle is “murder on the concrete, “ causing it to crack and heave. “Keeping them in compliance is the biggest financial expense of the (DOJ) settlement.”

Emmanuel Smith and Tai Tomasi of Disability Rights Iowa advocate statewide for accessible infrastructure. (Credit: Disability Rights Iowa) 

On average, Cedar Rapids spent $150,000 each year in maintenance and installation. It’s hardly the only community with sidewalk battles. In an effort to wrest control over high costs, Seattle has piloted the use of alternative materials, like stamped asphalt instead of traditional concrete, and it has tried using curb stops in the street to partition off an inexpensive “walker-only” lane. It’s also experimented with incentives for private developers to build more and better sidewalks. Santa Monica, California, installed rubberized sidewalks in 2000 as a way to repair walkways damaged by tree roots, inspiring at least 60 other cities to follow suit. The cities of New York, Chicago and Holland, Michigan, are among those that have installed heated sidewalks across at least some high-traffic areas; this is more expensive at the outset, but melting the accumulating snowfall during a storm can potentially save a great deal in maintenance costs. (Plus, people love them.)

In Cedar Rapids, the DOJ investigation began with auditors visiting an array of public spaces and ultimately concluding that people with disabilities were, “excluded from participation in or are denied the benefits of civic life,” as the settlement agreement noted.

The settlement, approved by the city last July, committed Cedar Rapids to installing around 4,000 new curb ramps over the next four years. It must also adapt parking lots so that there are visible handicap-accessible spaces, ease-of-access aisles and softened slopes. The city must build pathways in parks to create access to all recreation facilities, including upgraded restrooms, for those in wheelchairs, and it must also overhaul city services and technology.

The city also needed to solicit outside evaluation of public building accessibility. Recreation Accessibility Consultants in Hoffman Estates, Illinois, got the job, and the firm’s Jonathan McGovern is the point person. Nine months into his work, McGovern has reviewed about 1,500 curb ramps, all the sites the DOJ visited, and about two-fifths of the sites DOJ had not seen. He expects the evaluation to be complete by the end of the summer.

Having done this sort of assessing nationwide, McGovern says, “We used to have a top 10 list, though we don’t call it that anymore,” about the most common accessibility problems in cities or counties. High on that list: grab bars in restrooms that are too high, and overly steep slopes in public parking. The precise slope requirement is especially difficult to nail down in mountainous communities and river cities, like Cedar Rapids.

“Everyone gets the general concept,” McGovern says about the public officials and staff his firm works with. “If you stood in front of a room of people and said, ‘Hey raise your hand if you think every city service should be accessible,’ everyone’s going to raise their hand. The concept is clear that it’s the fair and right thing to do. But you’ll get a hundred different answers if you ask what it means for a playground to be accessible, or a curb ramp to be accessible.”

Planning Inclusion From the Start

The Cedar Rapids settlement is one of more than 215 DOJ agreements of its kind under Project Civic Access, including 15 settlements nationwide last year. They are designed to eliminate the physical and communication barriers “that prevent people with disabilities from participating fully in community life,” according to the project website.

The DOJ declined to give any details about this work, including the number of people who typically work on an investigation, how it first approaches jurisdictions that are coming under the microscope, and any specifics about its work with Cedar Rapids. As for how it chooses which communities to investigate, it would only point to its online fact sheet that says that decisions are based upon “the Department’s desire to visit every state, the population of the site, and, in some cases, its proximity to a university or tourist attraction. The majority of the compliance reviews occurred in small cities and towns, because they represent the most common form of local government.”

Those smaller cities and towns also tend to be the ones with less wiggle room in the budget.

Last summer, Cedar Rapids Mayor Ron Corbett called his city’s settlement an “unfunded mandate,” according to The Cedar Rapids Gazette, that may be “all for good reasons, but there are no financial resource given to us” to meet the requirements.

It’s true that expenses can be sizable, especially for a city like Cedar Rapids that hadn’t yet recovered from a natural disaster. To find funds to begin the work in 2015, the city council approved selling $5 million in bond debt. It expects to do the same for $10 million more over three years. The electorate also recently approved a local sales tax that will be wholly used for street maintenance and pavement management, according to Fowler, bringing about $18 million a year in new money to the city. When folded into the larger street project, some of that money can be used to build curb ramps.

Cedar Rapids is in the process of revamping sidewalks and adding sloped curbs. (Photo by Adam Wesley; republished with permission © 2015 The Gazette, Cedar Rapids, Iowa) 

Overall, McGovern says that Cedar Rapids “has really made a commitment to do this right the first time.” Compared to cities and counties “who continue to have difficulties in meeting compliance obligations” and “talk about complying to the minimum extent possible,” Cedar Rapids “bought into the concept completely. And it will serve them well not just today, in 2016, not just in two years, but in 2025 and 2030 and 2035, because the infrastructure is already going to be accessible.”

It’ll take some time for the improvements to impact the lives of the people who need them. But Tomasi of Disability Rights Iowa says, “I feel great progress in the Department of Justice pushing this along.” And some innovations, which may not be directly tied to the settlement, are already having an impact.

David Thielen is a Cedar Rapids resident and executive director of The Arc of East Central Iowa, which provides services and programs across seven counties to people with intellectual and related disabilities. That includes coaching individuals on how to take the bus and cross the street. “It takes a lot of skills to live inclusively in the community,” Thielen says.

Many Arc clients are intrigued by helpful technology, including the new Ride CRT app that tracks Cedar Rapids buses in real time and helps users to understand their routes and predict their arrival times. The settlement’s promise of mended sidewalks and new curb ramps is also “a huge step forward,” Thielen says, though he expects it to take a long time to materialize. “There’s a lot to get caught up on.”

One of the ways Arc of East Central Iowa supports individuals with intellectual disabilities is by providing help with navigating Cedar Rapids on foot and by bus. (Credit: Arc)

For some, it’s too late. “One reason I left Cedar Rapids even though I love it, is that it’s not the most accessible city,” says Tomasi. Transit options in particular didn’t have the accessibility features she needed. “It’s difficult when you grow to love the city and all it has to offer.”

That said, she sees the settlement as catalyzing a new process for urban planning that includes the input of people with disabilities at the very beginning. “A lot of funding is spent to fix things after the fact,” she says. Or, as her colleague Emmanuel Smith puts it, “When disabilities are an afterthought, you’re all but guaranteeing that something’s inaccessible.”

Smith lives in Des Moines, which went through the DOJ’s Project Civic Access audit in 2011. He still runs into some strange situations, however. “Like any 26-year-old, I want to see all these great bands coming to Des Moines,” he says. “But the logistical reality of living in Des Moines is I can’t get a ride past 9 p.m. because there’s no accessible taxi. … Effectively, I’m a 26-year-old with a 9 o’clock curfew.

“I think people with disabilities grow up in a community and they rightfully grow to love them,” he adds. “There’s a disparity in how much I love my city and how much my city loves me.”

Still, he doesn’t believe that ill will causes the veritable obstacle course he currently faces each time he wheels himself out the door. “I don’t think it’s a lack of professional ability of desire to include everybody,” he says. “I think there’s a disconnect between progress and good intentions of just not being aware that we exist.”

There are encouraging signs of city agencies giving greater consideration to the needs of all residents at the front end of their work, rather than the back end. Recently, the Cedar Rapids police department contacted The Arc because it was trying to develop better processes for how to respond to individuals with autism.

“They want to know as much about that individual prior to confronting them as possible,” Thielen says. “When there’s a fire, or people yelling, lights flashing, and they’re being told to put their hands in the air — [people with autism] may not be able to respond in the way [police] expect.”

Broken Infrastructure, Limited Mobility

It can be a numbing cycle: When cities are inaccessible, people with disabilities are moving through them less often. Given that lack of visibility, architects, lawmakers, business owners and policymakers are less mindful of their needs and act from a misplaced idea on what “normal” mobility needs are.

General infrastructure and communications are the top obstacles — and unnecessary ones. That’s the stance of Lillibeth Navarro, the energetic and smiling director of Communities Actively Living Independent & Free, which she founded in 2000. She arrived in Los Angeles for a journalism fellowship, after growing up in the Philippines, and ended up making it her home. “I was very, very lucky to be connected with the disability rights movement,” she says of her welcome to the Southern California city. “I didn’t know there was such a thing.” It has defined her life, personally and professionally, ever since.

CALIF was one of the groups that sued the city of Los Angeles on behalf of people with disabilities who struggled to navigate a place that wasn’t designed or maintained with them in mind. Many suffered injuries as a result of the buckling infrastructure; the city has paid more than $6 million in trip-and-fall payouts over about four years, though not all to people with disabilities.

Los Angeles’ disastrous sidewalks were a key issue in the lawsuit. In 2002, the U.S. Court of Appeals for the Ninth Circuit ruled that the ADA applies to sidewalks. (The case was a class-action suit against the city of Sacramento that alleged that by allowing sidewalks to fall into disrepair, the city was violating the ADA. In 2003, the U.S. Supreme Court denied Sacramento’s appeal.)

“Sidewalks are our way to access the world,” Navarro says. “We knew we were in good hands [with the lawsuit]. We knew we had very good lawyers and knew certainly how to articulate the difficulties, and we also knew the law was on our side.”

The lawsuit argued that it wasn’t their personal physical condition that was disabling residents from participating in the civic life of L.A., or from living independently; it was broken infrastructure that made them immobile. This was an issue even in a city that can boast of having a Department on Disability.

In 1998, voters in the city rejected a move to issue $769 million in bond money for sidewalks, and in 2014, lawmakers considered, and then abandoned, an effort to ask for a sales tax increase to pay for infrastructure fixes. After years of patchy funding, haphazard maintenance, and dispute over who is responsible for funding it — adjacent property owners or the city — about 40 percent of the city’s sidewalks are in need of repair, according to an estimate from the Bureau of Street Services. This is despite efforts by at least one council member to bring new sidewalk materials to Los Angeles, rather than concrete, to be more environmentally friendly and minimize sidewalk deterioration.

Donald Shoup, a UCLA urban planning professor who has extensively studied the issue, has written that an average of only 67 miles of sidewalk a year received repair between 2000 and 2008. “Even if sidewalks miraculously stopped breaking, at that pace it would take 69 years to repair all existing damage,” Shoup wrote.

Sidewalk repair in Cedar Rapids (Photo by Adam Wesley; republished with permission © 2015 The Gazette, Cedar Rapids, Iowa)

Many cities struggle to find the lines of responsibility for sidewalks. In Atlanta, property owners are required to cover sidewalk costs, but they only have to make repairs after receiving official notice from the city. Then, the owner can either contract with a city-approved contractor for repairs or it can pay to let the city handle it. A 2012 report about Atlanta’s sidewalk strategy calls for a more proactive inspection plan and touts the Sidewalk Trust Fund developed the year before to ensure it had enough dedicated money to make the repairs that property owners asked of it.

The L.A. settlement obliges the city to spend $31 million annually on improvements to the sidewalks and other highly trafficked walkways, gradually rising to $63 million in future budget years to account for rising costs. L.A. also created a new position to monitor the program and issue twice-yearly progress reports. In March, the City Council backed a “fix-and-release” plan. Beginning in July, the city would first repair the buckling sidewalks, and then would transfer future maintenance responsibilities to property owners. There is a built-in warranty period — two decades for homeowners and five years for commercial properties — where the city will guarantee one more repair, which is meant to assist property owners who might face an immediate problem.

In hopes of speeding up the improvements, the new plan will also offer a rebate if owners opt to fix the broken sidewalk adjacent to their property before the city gets to it. It would reimburse them for about half of the costs if they fix the sidewalk within the first three years of the program, and all permit fees would be waived.

About a year after the L.A. settlement, Navarro says she’s seen some progress in newly built sidewalks, and the installation of tactile paving that alerts visually impaired people to crosswalks.

“What’s wonderful about the law, and complying with it, is life becomes even more exciting and creative,” Navarro says. “We are all one family and we need to think of the needs of each other.”

Clearing a Path Beyond Lawsuits

Must the threat of a lawsuit be the only method of implementing universal design? “Unfortunately, the ADA is litigation-driven,” says Navarro. In Los Angeles, there are a dizzying number of competing priorities, so “it’s unfortunately still up to us to call attention to what’s in the law.”

For cities to not integrate universal design is to stunt the voices of people with disabilities to after-the-fact complaints. A better way is to create participatory roles for people with varying physical needs in the planning process — a “nothing about us without us” approach, as Smith of Disability Rights Iowa puts it.

Tomasi says she thinks that there are many negotiations that should occur before it comes to legal action, and Smith points to collaborative approaches their organization has engaged in, like technical assistance at the State Fair. But both acknowledge that a legal threat is often a very useful way of increasing ADA implementation — one of the sharpest tools in the toolbox. Because what they are advocating for is not just physical improvement in their communities, but a revolution in our conception of the common good.

“We’re so preconditioned to silo disability from the quote-unquote ‘normal’ experience of a city,” Smith says. “From my perspective, I can use a wheelchair to get to work; other people use their cars to get to work. We all rely on systems of support to live our lives. Cities are part of that. It’s not just people with disabilities. Instead, it’s having a comprehensive view of the challenges we’re encountering and how we grow together.”

The Americans with Disabilities Act, then, is for all of us. And in Cedar Rapids and Los Angeles, we’re beginning to see what that might mean.

Our features are made possible with generous support from The Ford Foundation.

Anna Clark is a freelance journalist in Detroit. She has written for the New York Times, the New Republic, NBC News online, Pacific Standard and other publications. She is a political media correspondent for the Columbia Journalism Review. Anna is the editor of A Detroit Anthology and author of Michigan Literary Luminaries: From Elmore Leonard to Robert Hayden. A former Fulbright fellow, she is also the director of applications for Write a House. Her website is annaclark.net.

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