Circuit clarifies when building renovations must be ADA compliant

Disabled people sued a Montauk resort complex because it was not wheelchair accessible. Easy case, right? Not really. The Americans with Disabilities Act contains specific and complicated rules governing when these defendants are liable for disability discrimination. The Court of Appeals has untangled these rules in a lengthy opinion, Roberts v. Royal Atlantic Corp., issued on September 18.

The issue concerns when a property owner has to make the building accessible for disabled people once they make building alterations that could affect its usability. When these alterations are made, the altered portions of the building must be accessible, to the maximum extent feasible. But the property owner has a defense: the accommodations do not have to be disproportionate to the overall alterations in terms of cost and scope.

In this case, the district court dismissed the complaint after a hearing. On appeal, the Court of Appeals rules in favor of the plaintiffs. This case is unique in that, over the course of 35 pages, the Court cites very few precedents (about three or four), relying solely on the statute and regulations. That's rare for any Court of Appeals. Relying strictly on the written rules governing these disputes, the Second Circuit (Sack, Jacobs and Pooler) makes the following rulings:

First, under the law, a building is "altered" requiring the property owner to accommodate the disabled when the alterations affect the overall usability of the building. Normal maintenance doesn't count. More extensive remodeling and renovations do count. "The greater the change made by a modification to a facility or portion of the facility, the closer it is, in effect, to new construction," the Second Circuit says.

Accordingly, the Court tells us, considerations for determining whether the modifications in this case are alterations under the ADA can (but need not) include factors such as:

1. The overall cost of the modification relative to the size (physical and financial) of the facility or relevant part thereof.

2. The scope of the modification (including what portion of the facility or relevant part thereof was modified).

3. The reason for the modification (including whether the goal is maintenance or improvement, and whether it is to change the purpose or function of the facility).

4. Whether the modification affects only the facility's surfaces or also structural attachments and fixtures that are part of the realty.

Under the rules, facilities must be made accessible even if the costs of doing so are high. The property owner can get around this if handicap accessibility is "virtually impossible." In other words, "the proportionality requirement limits the extent to which supporting areas must be made accessible," the Court says.

In this case, renovations to the resort in 2000-01 were significant, requiring disabilities accommodations. Bathrooms and kitchens were remodeled, rooms were gutted and floors were replaced. Most of the rooms were so renovated, and the property owner desired to renovate rather than merely maintain the place. As defendants changed the usability of the units, they had to make them accessible for people with disabilities. On remand, the defendants have to show that they made the necessary accommodations to the maximum extent feasible. Defendants can win only if the accommodations are "virtually impossible." Excessive cost is no defense to a case like this.

As for the parking area, the issue is whether the renovations were significant enough to trigger ADA accessibility requirements. Even if the lots were not "altered" under the law, they still have to be accessible if they are within the "path of travel" to the rooms, as the law defines that phrase. They are. The parking areas connect to the public street. But the parking areas do not have to be made accessible as a whole, as the path of travel for the person traveling by car begins at the parking space.