Coalition of Montanans Concerned v. Gallatin

• Decision Date: 27 March 1997
• Docket Number: No. CV 94-84-BU-DWM.,CV 94-84-BU-DWM.
• Citation: 957 F.Supp. 1166
• Parties: COALITION OF MONTANANS CONCERNED WITH DISABILITIES, INC., a Montana non-profit corporation, the Bozeman Chapter of the Coalition, Plaintiff, v. GALLATIN AIRPORT AUTHORITY, John Doe I, John Doe II, and John Doe III, Defendants.
• Court: U.S. District Court — District of Montana

957 F.Supp. 1166

COALITION OF MONTANANS CONCERNED WITH DISABILITIES, INC., a Montana non-profit corporation, the Bozeman Chapter of the Coalition, Plaintiff, v. GALLATIN AIRPORT AUTHORITY, John Doe I, John Doe II, and John Doe III, Defendants.

No. CV 94-84-BU-DWM.

United States District Court, D. Montana, Butte Division.

March 27, 1997.

Monte D. Beck, John J. Richardson, Beck Law Office, Bozeman, MT, for Coalition of Montanans Concerned With Disabilities, Inc.

Edmund P. Sedivy, Jr., Morrow, Sedivy & Bennett, P.C., Bozeman, MT, for Gallatin Airport Authority.

OPINION AND ORDER

MOLLOY, District Judge.

This case involves a dispute over whether the expansion of the Gallatin Field Airport Terminal complies with the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA").¹ The case raises a number of difficult issues involving statutory and regulatory interpretation as well as policy. The plaintiffs sue to enforce the requirements of the ADA, arguing there is a literal failure to comply with the Act and its enforcing regulations. The Congress assigned to the Attorney General the duty and power to interpret the statute and to set standards for enforcement and compliance. In this role, the Attorney General has been found wanting.

Unfortunately, while the Department of Justice has issued broad Standards for Accessible Design, it has not seen fit to step up to its statutorily mandated role by providing concrete guidance for architects and builders.

Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers. 950 F.Supp. 393, 394 (D.D.C.1996).

Thus, I am asked to enforce demanding, confusing and controversial design requirements that the Department of Justice itself has never championed in any court or in any rule making procedure, even when invited to do so. Id. The task is particularly difficult here because both parties have acted in good faith. The arguments made by both sides make sense. That conclusion contributes credence to the controversy. The questions raised in this case are the kind of issues that are better resolved by politicians in the executive and legislative branches. Yet executive and legislative input create a statutory and regulatory scheme that is confusing at best. Despite my view, Congress formulated the public policy, and, it created a remedy by permitting the injured plaintiffs to sue to enforce the requirements of the Act, 42 U.S.C. § 12101 et seq.

Both sides have moved for summary judgment. The terminal facility at Bozeman does not comply with the requirements of the Americans with Disabilities Act. Thus, Plaintiffs are entitled to have the Authority enjoined to bring the terminal into compliance with the Act. I arrive at this conclusion for the reasons set forth below.

I. BACKGROUND

In 1994, the Gallatin Airport Authority ("the Authority") began a three-phase, 8.7 million-dollar expansion of the Gallatin Field terminal. The project involved both remodelling the existing portions of the terminal and constructing additions onto the terminal. When the project is completed, approximately two-thirds of the ground floor, and 55-60% of the second floor and mezzanine will consist of new construction.

As part of Phase I of the expansion, the Authority moved the restaurant and bar from the ground floor to the mezzanine level, which is about three feet above the second floor. This move presented the problem of how to provide handicapped access to the new facilities. The existing elevator only went to the second floor, thus necessitating a stair climb to reach the mezzanine. To solve this problem, the Authority proposed installing a platform lift which would raise wheelchairs the additional three feet to the mezzanine.

The Coalition of Montanans Concerned with Disabilities ("the Coalition") have never been happy with this solution. They believe the use of platform lifts discriminates against the disabled by forcing them to use different facilities than the general public. The lift sometimes malfunctions, stranding people on the lift and forcing them to call for help. Members of the Coalition find this embarrassing and demeaning.

While the expansion was in the planning phase, the Coalition met with representatives of the Authority and expressed their concerns. The Authority refused to abandon its plans to use a platform lift. It did agree to screen the lift and to recess its floor mount. Despite the objections, Phase I went ahead as planned. The new restaurant opened on November 24, 1994.

The Coalition filed this suit in December 1994. The complaint alleges that the use of a platform lift under these circumstances violates the ADA. The Coalition seeks both a declaratory judgment stating that the Authority has violated the ADA, and an injunction ordering the Authority to modify the terminal to bring it into compliance. The Court is authorized to issue such an injunction by 42 U.S.C. § 12188(a)(1) and 36 C.F.R. § 36.501(b).

II. DISCUSSION

A. Overview

The overall policy of the ADA is to require relatively few changes to existing buildings, but to impose extensive design requirements when buildings are modified or replaced. See comments to 28 C.F.R. Subpart D. The Justice Department explains this policy as follows: "[T]he ADA is geared to the future — its goal being that, over time, access will be the rule rather than the exception." Id.

The regulatory scheme surrounding the ADA has at least four levels. First, there is the ADA itself. Title II of the ADA governs public entities, while Title III applies to providers of public accommodations. The Authority admits it is bound by both titles. Second, there are the regulations which the Justice Department has enacted under both Title II and Title III. These regulations supposedly flesh out the broad language of the ADA with more specific standards. Third, both sets of regulations adopt the ADA Accessibility Guidelines ("ADAGG") as binding standards for new construction and modifications to existing buildings.² Fourth, the Justice Department has issued various secondary materials explaining the ADA and associated regulations. These documents are persuasive authority. See Paralyzed Veterans of America v. Ellerbe Becket Architects and Engineers, 950 F.Supp. 389, 391-92 (D.D.C.1996).

Ordinarily, when faced with interpreting a complex system of regulations, it is helpful to have the benefit of a prior agency review of the merits of the case. Under the ADA, however, plaintiffs need not exhaust their administrative remedies before bringing suit. See 42 U.S.C. §§ 12133 and 12188; 28 C.F.R. § 35.172(b); 28 C.F.R. § 36.501. As a consequence, it is necessary to sort through the intricacies of the ADA regulations for the first time here.

B. Analysis

The issue in this case is whether the ADAGG require the Gallatin Authority to install an elevator as part of the airport terminal expansion project. The ADAGG recognize three types of construction: "new construction," "additions," and "alterations." An "addition" is "[a]n expansion, extension, or increase in the gross floor area of a building or facility." ADAGG § 3.4. An "alteration" is "a change to a building ... that affects or could affect the usability of the building." Id. The ADAGG do not define "new construction." Presumably, the definition is obvious.

The Coalition suggested at oral argument that the airport expansion is so extensive that it should be considered new construction rather than an addition. This argument is not persuasive. The stipulated facts state that the added portions will comprise about one-half to two-thirds of the finished building. This ratio is not so disproportionate as to violate the definition of "addition."

Assuming the project is an addition, the parties disagree over what rules apply to additions. This dispute stems from the following language of ADAGG:

4.1.5 Accessible Buildings: Additions.

Each addition to an existing building or facility shall be regarded as an alteration. Each space or element added to the existing building or facility shall comply with the applicable provisions of 4.1.1 to 4.1.3 Minimum Requirements (for New Construction) and the applicable technical specifications of 4.2 through 4.35 and sections 5 through 10.

The section contains two seemingly contradictory statements: (1) Additions are to be treated the same as alterations; and (2) Additions must meet the same standards as new construction. The apparent contradiction exists because the rules for alterations are quite different from the rules for new construction. In alterations, platform lifts may always be used instead of elevators. ADAGG § 4.1.6(3)(g). In new construction, platform lifts are almost never acceptable. ADAGG 4.1.3(5).

Each party reconciles the conflict in a way that serves its case. The Authority suggests that additions must meet the standards for new construction, except where those standards conflict with the more lenient rules for alterations. One of these more lenient rules is that lifts may be used instead of elevators. ADAGG § 4.1.6(3)(g). The Coalition argues the converse: that additions are subject to the rules for alterations, except that additions must meet the standards for new construction. ADAGG § 4.1.5. One of these standards is that an elevator must serve all levels. ADAGG § 4.1.3(5).

It is possible to reconcile these views. It is true that additions must meet the standards for new construction. But so must alterations. ADAGG § 4.6(b). Therefore, it is not a contradiction to say that additions are both regarded as alterations and subject to the standards for new construction. This view favors the Authority's interpretation.

Both additions and alterations must meet the standards for new construction. ADAGG § 4.1.5; ADAGG § 4.1.6(b). One of these standards is that an elevator must serve all levels, including mezzanines. ADAGG 4.1.3(5). But alterations get a special exception to this rule. In alterations, platform lifts may always be...