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SR-106-040-02 (2) F:\HSD\SHARE\COMMISSIONS-ADVISORY BOARDS\Disabilities Commission\Staff Reports\Barden v. Sacramento.doc City Council Meeting February 25, 2003 Santa Monica, California TO: Mayor and City Council FROM: City Staff SUBJECT: Request From Disabilities Commission that the City Council Pass a Resolution Refusing to Support the City of Sacramento’s Position in the Lawsuit Barden v. City of Sacramento Introduction This report transmits a proposed resolution drafted by the City’s Disabilities Commission, which, if approved by City Council, would state that the City of Santa Monica refuses to support the City of Sacramento’s appeal to the U.S. Supreme Court in Barden v. City of Sacramento (Attachment). Background In 1999 eight residents with disabilities of the City of Sacramento filed suit against the city, claiming that public city sidewalks are subject to the accessibility requirements under ADA Title II and, therefore, that the city was responsible to install curb ramps in newly constructed or altered sidewalks and to remove barriers in existing sidewalks. The plaintiffs and the city agreed to an injunction regarding the need for the city to install curb ramps. However, they did not agree on the city’s obligation to remove other barriers to sidewalk accessibility such as benches, sign posts and wires. Before the federal District Court, the City of Sacramento’s position was that sidewalks were not a service, program or activity 1 within the meaning of the ADA, and therefore the City was not required to make its sidewalks accessible. The District Court agreed with Sacramento and plaintiffs appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit reversed the District Court. The Court of Appeal concluded that the ADA’s “prohibition of discrimination in the provision of public services applies to the maintenance of public sidewalks, which is a normal function of a municipal entity.” The Court remanded the case back to the District Court. As stated by the Ninth Circuit ‘’at trial, the City will have the opportunity to present evidence concerning any ‘undue financial and administrative burdens’”. In November 2002, the City of Sacramento requested review by the U.S. Supreme Court. The U.S. Supreme Court has yet to decide whether it will accept the case. Amicus curiae briefs have been filed on behalf of both sides. Discussion At this stage, the primary issue in this lawsuit is whether sidewalks fall within ADA requirements. If they do, it is unclear whether or not the City of Sacramento has violated the ADA and if it has, what the remedy will be. Obviously many issues have been left open and are yet to be decided. Similarly, if the Supreme Court accepts review and reverses the Court of Appeals many issues may be left undecided, including whether Sacramento or any other city has to install curb ramps. The Sacramento Public Works Director has stated in an October 16, 2 2002 letter to other cities that the lawsuit claims “that under the ADA, a city’s sidewalks must be made ‘accessible’ by the removal and replacement of displaced or broken concrete, by the removal of telephone poles and other ‘obstructions’ in the sidewalk; and by the removal and replacement of all sidewalks with ‘excessive’ cross slope… The financial implications for cities, counties, telecommunications and utilities companies if this decision is permitted to stand are enormous.” One of the plaintiffs states that this is not accurate and that the ADA itself already protects cities against undertaking renovations that would cause “undue hardship.” The plaintiffs in the lawsuit ask “only for a plan to remove barriers in the sidewalk” similar to those plans used by most cities to address the installation of curb cuts over the course of several (up to 15 in some cases) years, and that the plaintiffs and other disability activists have always been willing to have it done incrementally. They were “willing to agree that the city could take up to 40 years to complete the project,” a plan that was presented to the City of Sacramento in failed settlement negotiations. The City of Sacramento states that more than 75 cities, including Phoenix, Denver and New York City, have voted to support the City of Sacramento and many of them have joined an amicus brief in support of Sacramento’s position. The National League of Cities and the California League of Cities have joined in an amicus curiae brief filed on behalf of the City of Sacramento, which urges the 3 Supreme Court to accept review of the case. However, a number of local government bodies have refused to support the City of Sacramento and have instead supported the plaintiffs, including the City and County of San Francisco, the County of Los Angeles and the Cities of Los Angeles, Oakland, Berkeley and Chico. On December 12, 2002, the Disabilities Commission voted unanimously to request that the City Council pass the attached proposed resolution stating its opposition to the City of Sacramento’s position in the case Barden v. City of Sacramento. The Disabilities Commission also voted to request that City Council join an amicus curiae brief on behalf of the plaintiff. Budget/Financial Impact Approving the resolution does not have any budget impact. If the appellant does not prevail, the financial impact potentially ranges from none if the City is already compliant with any time and condition standards which may be set by the court to a high cost if time and condition standards exceed those the City observes. At present it is not possible to determine whether there will be any long-term financial impact on the City as a result of the outcome of the case. 4 Recommendation Staff recommends that City Council receive the draft resolution and consider the Commission’s request. PREPARED BY: Barbara Stinchfield, Director Julie Rusk, Human Services Manager Tracy Scruggs, Human Services Supervisor Janet Hand, Sr. Administrative Analyst, Human Services Division Community and Cultural Services Department Joe Lawrence, Assistant City Attorney ATTACHMENT: Proposed Resolution from Disabilities Commission 5 RESOLUTION NUMBER __________________ (CCS) (City Council Series) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA, CALIFORNIA REFUSING TO SUPPORT THE CITY OF SACRAMENTO’S POSITION IN THE LAWSUIT BARDEN V. CITY OF SACRAMENTO WHEREAS the City of Santa Monica values the contribution of people with disabilities to society and supports the efforts of the disability community to overcome long-entrenched social, institutional, and physical barriers to equal access for people with disabilities; and WHEREAS, the City of Santa Monica believes that, as a matter of law and as a matter of sound public policy, cities have an obligation to make ongoing, reasonable efforts to ensure that sidewalks are accessible to people with disabilities; and WHEREAS, the City of Sacramento, in its appeal to the United States Supreme Court in Barden v. City of Sacramento, argues that the Americans with Disabilities Act does not require cities to maintain accessible sidewalks; and WHEREAS, the City of Sacramento has asked other cities to support the appeal, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA HEREBY RESOLVES THAT: Section 1. The City Of Santa Monica joins the City and County of San Francisco, the County of Los Angeles, and the Cities of Los Angeles, Oakland, Berkeley, and Chico, in respectfully refusing to support the City of Sacramento’s appeal to the United States Supreme Court in Barden v. City of Sacramento. Section 2. The City Clerk shall certify to the adoption of this Resolution; and thenceforth and thereafter the same shall be in full force and effect. APPROVED AS TO FORM: ______________________________ Marsha Jones Moutrie, City Attorney