Mote v. City of Chelsea, Case Number 16-11546.

• Decision Date: 19 May 2017
• Docket Number: Case Number 16-11546.
• Citation: 252 F.Supp.3d 642
• Parties: Shauna M. MOTE, Deborah Clark, Carlos Gray–Lion, Brenda Baraniak, Karen Street, Merlyn Street, Lee Benton, by his next friends Ronald M. Benton and Marion Benton, J.N., a minor, by his next friends Daniel and Mary Jane Nelson, Ann Arbor Center for Independent Living, Inc., and Jennifer Kundak, Plaintiffs, v. CITY OF CHELSEA, Chelsea Downtown Development Authority, and Michigan Department of Transportation, Defendants, and City of Chelsea, Third-party plaintiff, v. Washtenaw County Road Commission, Third-party defendant.
• Court: U.S. District Court — Eastern District of Michigan

252 F.Supp.3d 642

Shauna M. MOTE, Deborah Clark, Carlos Gray–Lion, Brenda Baraniak, Karen Street, Merlyn Street, Lee Benton, by his next friends Ronald M. Benton and Marion Benton, J.N., a minor, by his next friends Daniel and Mary Jane Nelson, Ann Arbor Center for Independent Living, Inc., and Jennifer Kundak, Plaintiffs,

v.CITY OF CHELSEA, Chelsea Downtown Development Authority, and Michigan Department of Transportation, Defendants,andCity of Chelsea, Third-party plaintiff,

v.Washtenaw County Road Commission, Third-party defendant.

Case Number 16-11546.

United States District Court, E.D. Michigan, Southern Division.

Signed May 19, 2017

Kenneth V. Klaus, Law Office of Kenneth V. Klaus, Manton, MI, John Mark Finnegan, Heberle & Finnegan, Ann Arbor, MI, Thomas H. Derderian, Wendy S. Hardt, Michael R. Kluck Assoc., Okemos, MI, for Plaintiffs/Third-Party Defendant.

Peter C. Flintoft, Chelsea, MI, John L. Tuttle, John L. Tuttle Assoc., Hoover, AL, Michael J. Dittenber, Michigan Department of Attorney General, Lansing, MI, Thomas H. Derderian, Wendy S. Hardt, Michael R. Kluck Assoc., Okemos, MI, for Defendants/Third-Party Plaintiff.

CORRECTED OPINION AND ORDER DENYING MOTIONS FOR JUDGMENT ON THE PLEADINGS, AND GRANTING PLAINTIFFS' MOTION TO AMEND THE COMPLAINT AND JOINT MOTION TO APPROVE THE CONSENT DECREE

DAVID M. LAWSON, United States District Judge

This case concerns the sidewalks, curbs, and intersections in the City of Chelsea, Michigan, and their accessibility to persons with disabilities. The plaintiffs—Shauna Mote and several other disabled individuals, joined by the Ann Arbor Center for Independent Living—filed this lawsuit under the Americans With Disabilities Act (ADA) alleging that the City of Chelsea and its Downtown Development Authority (DDA), along with the Michigan Department of Transportation (MDOT), have created or facilitated violations of the ADA within certain public pedestrian areas in the City by allowing businesses to renovate storefronts without including appropriate accessibility measures, and by removing previously constructed physical accommodations for wheelchair users, such as curb ramps at some intersections.

The plaintiffs initially sued the public entities they believed have jurisdiction over the facilities in question. Chelsea obtained leave to file a third-party complaint against the Washtenaw County Road Commission (WCRC), alleging that the responsibility for regulating and maintaining one of the main roadways through the City ("Old U.S. Highway 12"), which is the locale of certain alleged accessibility defects described in the complaint, rests entirely with that agency and is beyond the purview of the City or its zoning authorities. In the meantime, the plaintiffs and Chelsea and its DDA have reached a settlement, which they have presented as a proposed consent decree. The MDOT takes no position on that request, but the WCRC opposes it.

Presently before the Court are motions (1) for judgment on the pleadings by defendant MDOT; (2) for judgment on the pleadings by third-party defendant WCRC; (3) for entry of a consent decree filed jointly by the plaintiffs and defendants City of Chelsea; and (4) for leave to file a second amended complaint by the plaintiffs that would add the WCRC as a principal defendant and elaborate claims directly against that entity premised on the same facts alleged in the original complaint concerning certain roadways within the City of Chelsea. The Court heard argument on January 5, 2017. The pleadings state plausible claims against all of the public entities under Title II of the ADA and the Rehabilitation Act of 1973. Bringing the WCRC into the dispute as a main defendant clarifies the issues, properly aligns the parties, and will not prejudice anyone. There is no good reason not to allow the settlement between Chelsea and the plaintiffs. Therefore, the Court will deny the motions for judgment on the pleadings, grant the motion to approve the settlement, and grant the plaintiffs' motion to file a second amended complaint. Because of the delay in ruling on these motions, the Court will entertain the parties' proposals to adjust the present scheduling order.

I.

According to the first amended complaint, the individual plaintiffs are disabled persons, who live, work, or frequently travel to and within the City of Chelsea, Michigan, and who each require the use of a wheelchair, braces, cane, or other assistive devices in order to get around. Plaintiff Ann Arbor Center for Independent Living is an association that represents disabled persons such as the plaintiffs throughout southeastern Michigan, including in Chelsea. Together, and on behalf of persons similarly situated, the individual and association plaintiffs complain that the public streets and sidewalks in the City of Chelsea recently have become less than fully accessible to them due to City approvals of renovations by private businesses adjacent to public sidewalks and streets making those facilities inaccessible, and because of construction and renovation work done on public sidewalks and streets by the City of Chelsea, the WCRC, and MDOT, which either removed or omitted accessibility features. In particular, the plaintiffs claim that the City has allowed businesses to renovate their storefronts by installing new steps that create barriers to access for wheelchair users, where ramps previously allowed them to enter those businesses, and that the City (or other defendant agencies) have removed existing ramps and curb cuts and replaced them with grass or solid curbs at certain intersections.

The plaintiffs assert that all of the accessibility defects of which they complain are located within the City of Chelsea, and that many of the alleged violations concern the public streets and sidewalks along Michigan State Route 52 (which, within the City limits, is also known as "Main Street" and is the principal auto and pedestrian route through the city center). They charge that the alleged "defective construction and alterations, combined with insufficient maintenance and enforcement—have continuously failed to ensure that [the defendants'] sidewalks, street crossings, street level transit stops, and certain other facilities, services, programs and activities are readily usable by and accessible to Plaintiffs and others."

Plaintiff Deborah Clark uses a wheelchair and the aid of a service dog. She recently moved to Chelsea and discovered that she could not safely access the City's sidewalks, street crossings, and municipal parking. Also, she found that many downtown businesses lack an accessible entrance, and even the public library is inaccessible to her. She also cannot safely use many sidewalks and street crossings due to accessibility barriers.

Plaintiff Shauna Mote recently tried to use the City's new Jackson Street parking lot, which was built in 2014, but she was unable to do so because the driveway and walkways connecting the lot to Middle Street are too steep for her safely to traverse.

Plaintiffs Carlos Gray–Lion and Karen and Merlyn Street recently learned that the City removed long existing curb cuts that they had used on Congdon Street and Wilkinson street, and replaced them with inaccessible grassy areas or solid curbs.

Each year the City and its DDA sponsor several festivals and parades. The individual plaintiffs all have been unable to attend or fully participate in these events due to the lack of accessible public parking, as well as mobility barriers on City sidewalks and streets.

The MDOT has principal responsibility for maintaining the M–52 roadway, including the portion that comprises Main Street in the City, but it permits the City to do certain work on adjacent sidewalks and curbs. At various times after January 16, 1992 (the effective date of the applicable version of the ADA Accessibility Guidelines), MDOT has performed maintenance and new construction in the M–52 corridor, including re-paving the roadway from curb line to curb line and constructing or repairing sidewalks and curbs. Despite these renovations and new construction projects, MDOT has left in place a number of inaccessible curbs at pedestrian crosswalks. MDOT also has permitted the City to construct or alter adjacent sidewalks and curbs along Main Street, which suffer similar accessibility defects. MDOT also allows on-street parking along Main Street, and has striped parking spaces for that purpose. According to the first amended complaint, none of that parking is ADA-compliant because it is obstructed by, among other things, excessive slopes or obstructive lips between the street and sidewalks, as well as holes and other defects in the pavement or curb ramps.

In 2015 the City re-paved Congdon street and, in the process, removed two curb cuts at the pedestrian cross-walk at the intersection with Lincoln Avenue. The City also stopped its resurfacing project just short of an intersection with Middle Street, in order to avoid doing work that would have required the City to install curb cuts at cross-walks there.

Also in 2015, MDOT awarded the City a "Safe Route to Schools" grant (which included federal funds) to improve accessibility and safety in several public pedestrian corridors within the City. However, in addition to using those funds to build new cross-walks and signals, and to create some accessible curb ramps, the City also spent some of the money to remove other, long-existing curb cuts and ramps, replacing them with inaccessible features.

In 2014 the City constructed and opened its Jackson Street parking lot, which included a driveway and walkway connecting the public parking areas to the street. The parking facility, however, is inaccessible due to extreme slopes in the driveway and walkway.

Finally, since 1992, the City has maintained a number of public municipal parking lots and spaces for on-street parking along various city streets. The City has added or altered many of those municipal parking lots and on-street parking...