Sidewalks as Service or Facility

This is a bit of inside baseball for the municipal services set, but I was intrigued this week by a post on the The Midwest Planning BLUZ: Iowa State University Extension’s Blog on Land Use and Zoning.  I started following this source during Minnesota’s recent legislative revisions to zoning variance statutes.  I struggle to say anything nice about Iowa, but I do like to say nice things about Extension and Iowa does Extension well.

So with that disclaimer out of the way, the post in question reviews a recent case in Texas:

Frame, et al., v. City of Arlington
(Federal Fifth Circuit Court of Appeals, September 15, 2011)

The plaintiffs, who depend on motorized wheelchairs for mobility, sued the City of Arlington, Texas, alleging that it violated the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act by failing to make certain public sidewalks accessible to them. They alleged that certain inaccessible sidewalks make it dangerous, difficult, or impossible for them to travel to a variety of public and private establishments throughout the City. Most of these sidewalks were built or altered by the City after the effective date of the ADA in1992….

The ADA provides that no disabled individual “shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity.” For nearly two decades, the ADA’s implementing regulations have required cities to make newly built and altered sidewalks readily accessible to individuals with disabilities….

The court saw two possible ways to frame the issue: (1) whether building and altering sidewalks are services, programs, or activities of a public entity, and thus whether the resulting sidewalks are “benefits” of those services, programs, or activities; or (2) whether a city sidewalk itself is a service, program, or activity of a public entity [emphasis added]. The court then concluded that either way, when a city decides to build or alter a sidewalk and makes that sidewalk inaccessible to individuals with disabilities without adequate justification, the city unnecessarily denies disabled individuals the benefits of its services…

Seven judges joined an opinion concurring in part and dissenting in part, challenging only the majority’s conclusion that a sidewalk is a service under the ADA… the dissent asserted that “inanimate and static” sidewalks must be considered public facilities rather than public services…

The BLUZ already summarizes pretty well, so I would refer you back there for the details.  My interest is in the discussion:  are sidewalks a “facility”, like the city hall?  Or are they a “service”?

Let the lawyers argue ADA, but this is an interesting way to question how we look at how we plan cities.  When we think of facilities, we tend to think of technical engineering considerations, Capital Improvement Programming, big expensive sunk costs that are difficult to change.

If instead we think of streets as transportation services, why would we provide service to one mode of transport (the car) only?  Why wouldn’t we provide equal access to pedestrians on sidewalks, not to mention bicycles?

The point of city infrastructure is not the infrastructure itself, but the value our residents derive.

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