J.M. Hollister, LLC v. Architectural Access Bd.

• Decision Date: 06 June 2013
• Docket Number: No. 11–P–1847.,11–P–1847.
• Citation: J.M. Hollister, LLC v. Architectural Access Bd., 83 Mass.App.Ct. 513, 986 N.E.2d 417 (Mass. App. 2013)
• Parties: J.M. HOLLISTER, LLC v. ARCHITECTURAL ACCESS BOARD.
• Court: Appeals Court of Massachusetts

83 Mass.App.Ct. 513

986 N.E.2d 417

J.M. HOLLISTER, LLC

v.ARCHITECTURAL ACCESS BOARD.

No. 11–P–1847.

Appeals Court of Massachusetts, Suffolk.

Argued May 3, 2012.

Decided April 19, 2013.

Further Appellate Review Granted June 6, 2013.

Daniel P. Dain, Boston, for the plaintiff.

Douglas S. Martland, Assistant Attorney General, for the defendant.

Present: BERRY, MILKEY, & SULLIVAN, JJ.

SULLIVAN, J.

The Architectural Access Board (board) issued a final order on May 26, 2010, requiring that the retailer J.M. Hollister, LLC (Hollister), make all entrances to its Kingston, Massachusetts, store accessibleto persons with disabilities.¹ Hollister sought review in the Superior Court pursuant to G.L. c. 30A, and a judge granted the board's motion for judgment on the pleadings. We affirm.

Facts and procedural history. Hollister is a clothing retailer that leases and operates a store in the Independence Mall in Kingston. Hollister began operating that store in late 2005. When it took over the space within the mall, Hollister replaced the existing, fully accessible mall-level interior entrance with two adjacent doorways. The central doorway is a “California surf shack” entryway that consists of two steps leading to a roofed porch extending to the sides of the door and outward from the wall of the store into the mall. The porch contains large plants, pictures, and other decorative items. In other stores, the porches contain chairs and magazines for customers. At the back of the porch, on the left and right side, are two steps leading back down to ground level and into the store proper, one leading to the men's clothing section (the “Dudes”), and one to the women's clothing section (the “Bettys”).

The second doorway is a ground level, unadorned doorway with a mechanically operated door, located to the left of the porch. To the right of the porch (at that time) were a series of windows extending to the floor with plantation shutters, and a fire door, built to look like the windows. The door on the left also is designed to look like the plantation shuttered windows to the right, and the over-all theme is that of a California-style porch flanked by windows. A person entering the store through this left hand accessible door finds him or herself in the same location as if having entered through the porch and descended the stairs to the left.

Because the stairs lead up to the porch and then down again into the store, the porch doorway is not accessible. Eleven of the Hollister stores in Massachusetts use the stepped porch design, while others have the theme of a California surf shack entrance with no stairs. At the time of the initial complaint, disabledpersons wishing to patronize the Kingston store had to use the mechanically operated door on the left.

In January of 2008, Jennifer Niles, a wheelchair user, submitted a formal complaint to the board that the Kingston store was not accessible. The accessible doorway to the left of the central porch doorway did not function on multiple occasions. As a result of the complaint, the board began an investigation, during which Hollister applied for a variance from its obligation to make all public entrances to the store handicapped accessible. See 521 Code Mass. Regs. § 4.1 (2006). The board denied this application on the grounds that Hollister had failed to prove that it was impractical to make the porch entrance accessible.

Hollister appealed and requested an adjudicatory hearing before the board. See 801 Code Mass. Regs. § 1.02 (1998). Hollister argued that the multiple doorways at the front of the store were in fact one single entrance; and that since one of the doorways at this single entrance was accessible, the entrance satisfied the board's regulations requiring that all public entrances be accessible.

After a hearing in November, 2008, the board found that Hollister was not in compliancewith 521 Code Mass. Regs. § 2.6 (2006) because the left hand door was still not reliably functional ² and the central porch doorway was not accessible. The board ruled that Hollister had impermissibly created the noncomplying condition and failed to show either that compliance was impractical or that the cost of compliance was disproportionate to the benefits it would create for the disabled. The board ordered Hollister to bring the store into compliance. See G.L. c. 22, § 13A; 521 Code Mass. Regs. §§ 1.00, 4.00, 26.00 (2006).

Hollister then sought judicial review of the board's decision. A judge of the Superior Court remanded the matter to the board to determine whether the left hand door had in fact been made fully functional, for further consideration of the board's ruling that the (at that time two) doorways were separate entrances, and whether Hollister should be granted a variance. After the original complaint was filed, and the first hearing was held, Hollister altered the fire exit door to the right of the porch so that it became a second accessible door. It is identical in appearance to the door on the left, and leads to the same location as the porch stairs inside the store that lead downward to the right hand side of the store interior. Both the left hand and right hand doors are physically separated from the central porch door.

The board held two evidentiary hearings to address these questions. The board found that the left hand accessible door was not yet fully functional, but that a newly modified right hand door (previously a fire door) was accessible. The board then considered whether the three separate doors at the front of the store constituted a single entrance or multiple entrances.

The board concluded that each door was a separate “entrance” as defined in the regulations, and Hollister was therefore required to make each entrance, including the porch entrance, accessible to the disabled. The board considered whether modifying the porch (by removing or altering the steps) was impractical either because it was technologically infeasible or because the costs of modification outweighed any resulting benefit to the disabled users. See G.L. c. 22, § 13A. The board found that modification was feasible, given that Hollister had constructed stores with the porch-like facade but without steps in other stores, and that the porch aesthetic would not be compromised by the removal of the steps. The board also found that the cost of modification was far outweighed by the potential benefits to disabled users, and that Hollister's cost estimates were not credible.

Hollister appealed this decision of the board, and moved for judgment on the pleadings. A judge of the Superior Court upheld the board's finding that the entrances were separate, and found that there was substantial evidence to support the denial of a variance. This appeal followed.

Discussion. 1. Standard of review. Hollister argues that the board's decision is arbitrary and capricious and contrary to law, because the three doors constitute a single entrance to the store. See G.L. c. 30A, § 14(7)( c ) & ( g ). We consider these arguments in the context of the standard of judicial review of administrative decisions. We review questions of law de novo, see Rosing v. Teachers' Retirement Sys., 458 Mass. 283, 290, 936 N.E.2d 875 (2010), keeping in mind that the board has been vested by statute with a “wide range of discretion in establishing the scope of its authority” (citation omitted). Brooks v. Architectural Barriers Bd., 14 Mass.App.Ct. 584, 588, 441 N.E.2d 549 (1982). See G.L. c. 22, § 13A. Like all administrative agencies, the board's interpretation of the statute and regulations is entitled to considerable deference, especially where, as here, the legislative grant of authority is very broad. See Pyramid Co. of Hadley v. Architectural Barriers Bd., 403 Mass. 126, 131, 525 N.E.2d 1328 (1988); Brooks, supra.

2. Entrance. a. Statute and regulations. The statute provides that the board is fully empowered to adopt regulations “designed to make public buildings accessible to, functional for, and safe for use by physically handicapped persons....” G.L. c. 22, § 13A, as amended by St. 1986, c. 642, § 2. The intent of the regulations, consistent with the remedial purpose of the enabling legislation, see Iodice v. Architectural Access Bd., 424 Mass. 370, 375, 676 N.E.2d 1130 (1997), is to “provide persons with disabilities full, free, and safe use of all buildings and facilities....” 521 Code Mass. Regs. § 2.2 (2006). All new construction of or in public buildings must comply in full with the requirements of the statute and the board's regulations. See G.L. c. 22, § 13A; 521 Code Mass. Regs. § 3.2 (2006).

The term “accessible” is defined in § 13A, as amended by St. 1986, c. 642, § 2, to mean “the state of a ... building ... that complies with this section and any rules or regulations promulgated hereunder and that can be approached, entered and used by physically handicapped persons.” The regulations require that “[a]ll public entrance(s) of a building or tenancy in a building shall be accessible.” 521 Code Mass. Regs. § 25.1 (2006). The term “all” was added to the regulations in 1996. Prior to this change, the regulations required access only at the “primary public entrances.” See Iodice v. Architectural Access Bd., supra; 521 Code Mass. Regs. § 26.1 (1987).

The board found that the three doors were separate entrances because each door constituted a separate access point to the store. The board's regulations define entrance as “[a]ny access point to a building or portion of a building or facility used for the purpose of entering. An entrance includes the approach walk, stairs, lifts, ramp, or other vertical access leading to the entrance platform; the platform itself; vestibules, if provided; the entry door(s) or gates....” 521 Code Mass. Regs. § 5.35 (2006). The board also found that the entrances were functionally different. The porch entrance provided an ostensibly central point of access, giving customers a choice as...