In addition to the many considerations that associations and multi-family property owners must analyze when undertaking repairs and
improvements (e.g., financial considerations, and what consent may be required to permit the improvement), those associations and/or owners should also be aware that projects impacting access to buildings and/or projects which pertain to facilities open to the public – such as updating the pool, repairing the sidewalks, or altering a building entrance – could trigger state (and federal) accessibility requirements.
This article focuses on the
state accessibility requirements and relief. The analysis of whether the state
accessibility requirements come into play is highly fact driven. Before a
determination can be made as to whether state requirements will be triggered,
it will be necessary to have the scope of work prepared to determine whether
the work comes within the ambit of having to meet state accessibility
requirements. If it does, a second inquiry into the feasibility of
compliance with state accessibility requirements will be necessary and, if
feasible, at what expense. This feasibility analysis, if necessary, may
very well require expert opinion of the limitations imposed by the site,
options for accessibility, and/or cost estimates.
A general framework
and questions for consideration are as follows:
Does the scope of the
work to be performed come within the purview of state access requirements?
In general, repairs,
remodeling, and additions to public facilities (which is defined to include
common areas open to the public under the state statute), will require
compliance with the access regulations imposed by the state. Maintenance
activities and basic repairs and certain defined work does not require
compliance (if the work is limited to mechanical or plumbing systems, for
instance, and does not alter areas of accessibility or is a type of excluded
masonry repair). See, 521 CMR 3.3. If the work being performed
amounts to less than 30% of the full and fair value of the building and the
work costs less than $100,000.00, compliance may not be necessary.
If the work to be done
does come within the purview of the state accessibility requirements, would it
be impracticable or would it result in excessive or unreasonable cost to
comply?
A project that otherwise may
be subject to state accessibility requirements, may be able to obtain a
variance if to achieve strict compliance with state accessibility requirements
would be impracticable. Work is impracticable if it would be; (1)
technologically or legally unfeasible, OR (2) compliance would
result in excessive and unreasonable costs without any substantial benefit to
persons with disabilities.
The first way to show
that the work would be impracticable is to demonstrate that it is
technologically or legally unfeasible. A ramp to a new/upgraded pool may
be physically impracticable because there is not enough land to grade a ramp or
space to fill in land, for example. It
may be legally impracticable if to construct a conforming ramp you would have
to build over the property line to achieve compliance. In such cases it may
require a specific expert opinion that, for example, based upon the topography
and current grading (or whatever the specific barrier is) the work is
unfeasible. Another consideration is, would the work undermine other
elements of the project or site? Compliance may not be achievable if it
would undermine the structural integrity of the building.
Second, would the
proposed work to achieve compliance with state accessibility requirements be excessively/prohibitively
expensive without substantial benefit to persons with disabilities. A
cost-benefit analysis is not relevant if the Architectural Access Board (“AAB”) determines that
there would be a substantial benefit to persons with disabilities. (Note
that the Commonwealth’s AAB develops and enforces
regulations designed to make public buildings accessible to, functional for,
and safe for use by persons with disabilities). Therefore, only if there
is no substantial benefit does the issue of the cost of complying with the
regulation become important. See, 521 CMR, 4.1., 5.1., J.M.
Hollister, LLC v. AAB, 469 Mass. 49 (2014). Equal access (where there
is none or it is not on the same terms) is a substantial benefit.
Interpreting similar statutes, the courts have rejected arguments that the
accessibility work would be “impracticable” simply because it was costly – but
there are limits. For instance, one court concluded the installation of an
elevator that would cost as much as $150,000.00 would be excessive in a
building of a certain size, but the installation of a less expensive chair lift
would not. In another case, where remodeling to provide an accessible
entrance would cost between $50,000.00-$110,000.00, the court found that was
not excessive.
If work would otherwise require compliance with state accessibility
requirements, but that work is impracticable for the reasons set forth above,
the AAB is empowered to hear petitions for a variance and may waive strict
compliance with the state accessibility requirements. In December of 2021, the
AAB updated its variance petition application, which can be found online. Once
a complete application is submitted, the AAB will put the matter on its docket
in approximately 3-5 weeks. The AAB
gives local agencies --including the local building department, local
independent living council, and disabilities commission, all of whom must also
be served with the application -- a 14-day window to comment on the
application. The AAB reviews new cases
and holds hearings on variance applications every other Monday.
A member of the Association’s condominium law and practice section Kate
is an associate in firm of Moriarty, Troyer & Malloy, LLC. Kate has handled complex transitional
litigation including phasing disputes, construction defect claims and related
matters. Kate can be contacted by email at kbrady@lawmtm.com.
