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Douglas Ave. Trail vs. the American Disability Act

Despite ADA requirements, proposed trail has no provisions for people with disabilities.

Despite ADA requirements, proposed trail has no provisions for people with disabilities.

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The American Disabilities Act (ADA) was adopted in 1990. Since its adoption, it has been the target of numerous administrative complaints and court actions. Despite all the legal wrangling and hand wringing, most administrative and court decisions have upheld the right of people with disabilities to enjoy recreation in the most integrated setting. “Integrated” doesn’t mean “go down the alley around to the next block.” “Integrated” means shared use with other users on the same pedestrian trail. The lack of consideration for the disabled who are using the Douglas Avenue Connector trail smacks of disrespect and ignorance. Staff may not have seen a disabled person use the trail – but that doesn’t mean that they are not using it. In fact, the law presumes there will be some use of the trail by the disabled.

As a lifelong user of Bellingham’s public trails, I’m committed to protecting our Greenways trail system. City trails provide us with neighborhood connectivity, walkability, open space and essential habitat for urban wildlife. Our trails allow us to recharge our internal batteries after a hard day’s work and allow us to connect with the healing powers of nature. Trails also allow users to avoid unpleasant encounters with vehicles on streets and alleys without sidewalks. Trails are used by parents with strollers, joggers, hikers, students, employees, retirees and people of any age with mobility challenges. 

In Happy Valley, there are a handful of minor trails that allow WWU students and other members of the community to access the campus on foot or with a variety of mobility assistance devices. One of those trails is the 26-year-old Douglas Avenue Connector between an undeveloped portion of Douglas Avenue and 21st Street that was recently vacated by the City Council to provide additional density and parking for a developer. 

In hope of preserving this trail, John Blethen, a former Parks Department Advisory Board member, sent Councilman Michael Lilliquist an email explaining how the Douglas Avenue Connector trail is an integral part of the trails in Happy Valley. He asked Lilliquist to vote against the petition for vacation. The details of this email exchange are available in Tip Johnson’s NW Citizen article titled, “The Scheme to Turn Green-Spaces into $Green | Northwest Citizen (nwcitizen.com)” 

In the end, Councilman Lilliquist voted to approve the petition to vacate, informing Blethen that the Douglas Avenue Connector is now a permanent public access easement. But that doesn’t add up. The trail was already considered a public right of way, it had been in use by pedestrians for twenty-six years. 

Granted, in its current state, the trail is narrow and winds through the property via a series of switchbacks. In fact, in the hearing examiner’s record of proceedings, city staff emphasized the steepness of the grade and the fact that one of the staff who visited the site had to bend down to avoid touching branches. Bellingham has steeper trail grades than the Douglas Connector trail. But that information was not shared with the hearing examiner. 

To avoid the hassle of being forced to deal with angry trail-loving constituents, the vacation of Right of Way Ordinance is requiring the owner of the vacated ROW to build a “thirty-foot wide, non-exclusive trail for public access…” with the caveat that the developer “shall improve the existing trail…to a standard approved by the Parks Department including…stairways where necessary to accommodate grades and alignment…”

But as Tip Johnson points out, “this isn’t a ‘win’ for the public.” Moving the trail into a 30 ft. easement will require one or more sets of concrete stairs to meet grade and alignment standards. Currently, the existing trail accommodates the grade with gentle switchbacks in a natural setting.” Yes, I’ve walked the trail. And despite the federal American Disabilities Act requirement to integrate the disabled into public pedestrian right of ways, there are no provisions in this proposed preliminary plan for non-exclusive access for individuals with disabilities,. 

The city is aware of these requirements. In April of 2021, City Hall published a 110-page study titled "Mobility for All- City of Bellingham Americans with Disabilities Act Transition Plan for the Public Right-of-Way” to help bring the city into compliance with the American Disabilities Act of 1990 (ADA).

One out of five Americans is disabled. Many of those disabilities are “invisible” to the naked eye. Some examples of invisible disabilities are arthritis, balance issues due to hearing loss, heart or lung disease, physical birth defects or serious injuries (hip, knee, foot and ankle) that prevents a person from using stairs. One out of ten Americans is seriously disabled. Subsequently, it makes sense to ensure that a plan to modify a trail that has been in use for 26 years will continue to provide access to a diverse group of users. Yet, I can not find one single reference in staff comments noting that the proposed series of cement stairs will create an impassible barrier for many residents and visitors walking in Happy Valley. The city is of the opinion that stairs will be a vast improvement over the existing dirt trail. 

Another segment of the Douglas Avenue trail.

The ADA defines a trail as a “route that is designed, designated, or constructed for recreational pedestrian use or provided as a pedestrian alternative to vehicular routes within a transportation system.” The existing trail, with regular maintenance, could remain accessible to a diverse group of users as it gently meanders across the original eighty-foot ROW. Two sections of trail could be improved: There are rocks and a couple of boards, used in the past to retain dirt, that need to be moved; and an existing foot bridge needs to be widened and brought to grade with an accessible ramp. Nevertheless, the trail in its current state is accessible to individuals with many disabilities. The new proposed modified trail will create an impassible barrier (impediment) to access for an unknown number of people. 

On one hand, the city appears to be concerned about the ADA and the ease of public access; on the other hand, they just voted to approve the vacation of a public right of way that was an established pedestrian connector to Greenways trails and the Western Washington University campus. Furthermore, they stated in Section 34 of the street vacation ordinance that No damage shall result to any person or persons or to any property by reason of the vacation of said right-of-way. If reconfiguration of existing utilities is necessary, it shall be at the sole expense of the petitioner.”

I disagree. The proposed modifications to the trail will create an impassible barrier that will prevent some mobility challenged individuals from using the trail. That is considered “damage.”

And, claiming that we didn’t “hear any comments or concerns” from a disabled person during public testimony does not constitute grounds for waiving their civil rights to an integrated, accessible trail.  

Not only can a flight of stairs limit access to people using all-terrain wheelchairs or trikes. They also create a barrier for parents or grandparents with small children in strollers, or a person using a wheeled cart to bring groceries home. 

The removal of barriers on public trails is vital to people with or without disabilities. A fact that seemed to be overlooked when the council voted to approve the vacation ordinance. 

A trail does not have to be three feet wide to be accessed by a disabled person, even though federal, state, and local governments have trail construction guidelines. Nor does it have to have eight feet of overhead clearance. An accessible trail can have a natural dirt, gravel, or paved surface. There are many all-terrain (manual and electric) wheelchairs, trikes, and scooters that can navigate uneven or steep ground. In fact, there are disabled individuals using the trails in the Cascade wilderness!

As the Tokyo Olympics demonstrated, there are disabled individuals who are physically fit and able to use many of Bellingham’s Greenways trails, with or without a wheelchair, walker, or all-terrain trike. Which is just one of many reasons the ADA seeks to protect the rights of the disabled to enjoy recreation or pedestrian travel in integrated settings. 

I can’t tell you if the city intentionally ignored the civil rights of the disabled. Or, if they just zoned-out because none of the individuals who took part in researching or creating the vacation of the Douglas Connector ordinance has mobility limitations. If you can easily walk a series of stairs in an outdoor setting, you may not realize that you are creating an impassible barrier for others who are not as fortunate. 

In closing, a recreation consumer/user is not required to exhaust administrative remedies before going to court. In court, a successful ADA petitioner can win injunctive relief and payment of legal fees and costs. I would hope we can avoid going down that road. Individuals with physical challenges shouldn’t have to go to court to fight for their right to have integrated public trails in Bellingham. 

That said, anyone who encounters discrimination by state and local governments can file a complaint under ADA Title II at http://www.ada.gov/t2cmpfrm.htm. You must file an ADA Title II complaint within 180 days of the discrimination

Or, you can contact the City of Bellingham and submit an accommodations request form or contact ada@cob.org, (360) 778-7900, or Relay: 7-1-1. 

Or, you can file a complaint with the city.

Comments by Readers

Elisabeth Britt

Sep 11, 2021

The right-of-way vacation was approved by the city council in a 5-2 vote with Councilman Gene Knutson and Councilwoman Lisa Anderson voting against the ordinance. 

Before writing the article posted above, I perused recent case law under ADA Title II. I’ve posted a brief  excerpt below from one case. 

The Federal Americans with Disabilities Act of 1990, 42 U.S.C. 12101 specifically applies to local goverments. Public facilities built or altered by local governments after January 26, 1992, must be readily assessible to, and useable by, individuals with disabilities. 

The newly approved Douglas Avenue ordinance requires the owner to move the trail to a 30 foot easement. In other words, the trail is about to be altered. Once the trail is completed, “according to Bellingham City Parks Standards” it is my understanding that the City will maintain the trail. 

In Kirola v. City and County of San Fransisco, 860 F .3d 1164 (9th Cir. 2017), the 9th Circuit Court held that failure of a local governmental facility to provide “meaningful access” constitutes a violation redressable in civil court. The Kirola court held that the federal ADA regulations apply to public rights-of-way, parks and playground facilities because those government facilities include features such as ramps that are expressly governed in the federal ADA regulations. 

There are many other cases, but I will leave it to the attorneys to flush out the details as they apply to city pedestrian trails in undeveloped right-of-ways. 

 

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Carol Follett

Sep 11, 2021

Thank you for this information and your dedication to our community. I do not often comment and so have difficulty going through the password hurdles to share a thought. Our family signed and shared the petition and support every effort to keep green and healthy living spaces for everyone. One disability you did not mention is mental health in this piece. So, I wish to add this quote from a report on green spaces, and a natural trail is certainly part of that:

“Individuals have less mental distress, less anxiety and depression, greater wellbeing and healthier cortisol profiles when living in urban areas with more greenspace compared with less greenspace. Large differences in disease prevalence are reported when comparing residents of very green and less green settings, even after controlling for socioeconomic status (Maas et al2009). Quantity of nearby greenspace buffers life stresses – a finding demonstrated across ages and cultures, having been observed both in an adult population from the Netherlands and in a childhood population from rural upstate New York, USA (Wells & Evans, 2003; van den Berg et al2010).”
 
Packing individuals and families in “boxes” with parking lots is damaging to all. Living with nature is a human right, and as necessary for our health as food and water.
 
Thank you for your work on this and so many good things.
 
(posted by editor for Carol, who is a registered commenter.)
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Elisabeth Britt

Sep 11, 2021

Thank you, Carol, for sharing this information with us. I agree, urban community green settings lower stress, anxiety and depression for those individuals who frequent them. 

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