INTRODUCTION
 
This article describes a case in which an engineering firm, Engineering, Inc.[1], was retained to design improvements to the streetscape of a small, suburban town, (“Town”) located in a hilly section of central Massachusetts.  The design of the streetscape improvements implicated the Americans with Disabilities Act (“ADA”) and state accessibility regulations.  After the Contractor substantially completed the first phase of the project, a local accessibility advocate pointed out what he considered to be violations of the regulations of the Massachusetts Architectural Access Board (“MAAB”).  The Engineering Firm immediately began to work with its client to address the accessibility issues.  Unfortunately, this process was complicated by the fact that the Contractor had performed shoddy work and was essentially non-responsive to the Town’s request that it repair construction deficiencies.  To add insult to injury, the Contractor claimed to be entitled to recover extensive, additional monies allegedly resulting from its overtime work, acceleration, etc.  In order to spur the contractor and its surety into action, the Town filed suit against these parties and against Engineering Firm Despite this suit, Engineering Firm continued to work with the Town to resolve the outstanding accessibility issues.
 
This case review provides a good platform from which to consider potential problems which may befall designers when working with accessibility issues.  More importantly, this case demonstrates how Engineering Firm effectively addressed community concerns and accessibility issues to resolve what otherwise could have been lengthy and expensive litigation while simultaneously maintaining its relationship with its client.
 

FACTS OF CASE
 
Engineering Firm entered into a design contract with the Town of Town on November 11, 1997.  Pursuant to this contract, Engineering Firm agreed to provide design engineering services “that will encompass the rehabilitation of the downtown sidewalk areas within the project target area” of approximately three city blocks.  In general, the work included removal and replacement of approximately 3,800 square yards of concrete sidewalks, installation of brick accent strips, removal and resetting of approximately 2,450 linear feet of existing granite curbing, installation of new curb cuts, and tree planting.  As envisioned in the contract, Engineering Firm planned as part of the design process to interact with town officials, local businesses, citizens, and other people who would be affected by the improved streetscape.
 
The Town of Town is located on hilly terrain such that the slope of the existing sidewalks, streets and crosswalks do not comply with applicable state and/or federal accessibility requirements.  One of the challenges facing Engineering Firm was that many entrances to businesses along the main street (High Street) were several inches higher than the existing and the planned sidewalks.  The height of entrances to various businesses was such that it would be impossible to achieve a cross slope of less than 2% without either building up the roadway or lowering entrances (either one of which would present significant financial and technical difficulties).   Moreover, given the nature of the existing terrain, it was clear that even after construction, not all of the sidewalks and curb cuts would comply with applicable regulations relative to cross slopes.
 
It bears noting that Engineering Firm appropriately included in its contract general terms and provisions including, among other things, limitation of liability provision[2] and standard of care.[3]
 
By separate supplemental agreements, Engineering Firm agreed to:  (1) provide construction management services on the project; and (2) provide “full-time technical observation and inspection of the construction.”   This latter supplemental agreement would become important relative to relations with the Town and the Town’s claim that Engineering Firm did not properly oversee the contractor.
 
Consistent with its contract, the Engineering Firm conducted several workshops with town officials, a special design committee, local businessmen, and other citizens to discuss “existing utilities, problem areas, design concepts, and scheduling.”  Through these workshops, the Engineering Firm was able to develop a “vision” for the streetscape which specifically addressed local concerns while at the same time complied with the Engineering Firm’s understanding of applicable accessibility requirements.  The Engineering Firm designed the improved streetscape pursuant to ADA requirements.
 
After the Engineering Firm completed its design drawings and specifications, the Town put the project out to public bid in June of 1998.  The low bidder was Construction Company, Inc., (“Contractor”).  Contractor executed a contract with the Town on July 29, 1998.  As set forth in the construction agreement, Contractor was required to substantially complete the project within 105 calendar days and to reach completion by approximately mid-November, 1998.
 
Unfortunately, construction did not go as quickly or easily as anticipated.  By September of 1998, the Town complained of numerous items of alleged defective workmanship by Contractor.  Since the Engineering Firm was at this time providing construction management as well as full-time resident inspection services, the Town faulted the Engineering Firm for “failing” to supervise the work of the contractor.[4]  Contractor did not complete the work in the allotted time and then suspended for the winter of 1998.  When Contractor resumed work in the spring of 1999, its work practices had not improved with the time off.   When it became clear that Contractor would not complete the project without some specific “encouragement” from the Town, the Town was forced to insist upon a new deadline, May 25, 1999.  Unfortunately, Contractor did not complete the project by this deadline.
 
In May of 1999 a citizen member of the Massachusetts Office of Disabilities suggested to the Town that the project did not comply with MAAB accessibility requirements.  When the Engineering Firm became aware of this allegation it immediately provided notice to its professional liability carrier of this potential claim situation.  The citizen advocate filed an official complaint with the MAAB in September of 1999.  DPIC and Engineering Firm immediately retained an accessibility consultant who reviewed the allegations in the MAAB Complaint.  Thanks to this quick action by the Engineering Firm and its insurer, the Engineering Firm was able to establish a plan for addressing the accessibility issues while maintaining a positive relationship with its client.
 
MAAB Rules and Regulations are incorporated by reference into the Massachusetts State Building Code and are enforceable by building inspectors.  While local building inspectors typically can play a role in advising the Town and/or designers of state accessibility regulations, building inspectors’ opinions remain merely advisory.  Only the MAAB can provide official interpretations of the applicability of its rules and regulations and only the MAAB can grant variances to these regulations.   Neither local building inspectors not the MAAB, however, have jurisdiction to interpret or enforce federal accessibility standards as set forth in the ADA.  As noted above, the accessibility advocate who filed a complaint with the MAAB did so on state grounds, not federal.  If one were inclined to file a federal complaint, then he/she would have to file a complaint with the Massachusetts Attorney General’s Office, the United States Department of Justice, or in Federal District Court.
 
The primary criticism of the design as voiced in the MAAB Complaint involved curb cuts and cross slope conditions at the reconstructed sidewalks.  Part of the problem facing the Engineering Firm and the Town was that, while the allegations in the MAAB Complaint had some validity (i.e., the as-built condition of the streetscape technically violated certain provisions of the MAAB regulations), it would be essentially impossible to reconstruct the streetscape so that it complied in every respect with MAAB regulations.  Consequently, it became clear that the best course of action would be to voluntarily redesign certain portions of the streetscape while simultaneously seeking variances as to aspects of the design that could not feasibly be made to comply with MAAB requirements.
 
The matter was complicated by the fact that state and federal regulations were substantively inconsistent and, with respect to federal ADA requirements, did not provide a mechanism for granting a variance.  What this meant was that, even assuming that the Engineering Firm were successful in obtaining variances from the MAAB relative to state requirements, there was no parallel track to obtain variances from ADA requirements.  To further complicate the matter, at that time state standards and regulations for sidewalk reconstruction were in a state of flux.  ADA Accessibility Guidelines had not been issued for public sidewalks and curb cuts.  The ADA Accessibility Guidelines did provide guidelines for “accessible routes,” parking, passenger loading zones, and curb cuts but lacked formal guidelines for public sidewalk reconstruction.  In this regard, the issues presented in Town were not unique and are found in thousands of communities across the country.
 
The plan of attack which the Engineering Firm, its insurer, and the accessibility consultant devised was to work as closely as possible with the complainant, the Town, and the MAAB:  (1) to achieve as much voluntary compliance with MAAB regulations as possible; (2) to develop consensus and support among all involved parties; and (3) to request any necessary variances from the MAAB.  As noted above, the Engineering Firm understood that even if it were able to address and resolve the issues identified in the MAAB complaint, this would not necessarily resolve potential ADA issues.  While the MAAB provides a mechanism to grant variances, the ADA has no such variance procedure.  The Engineering Firm hoped that by moving forward on the state level, however, it would effectively deter any individual who would be inclined to file a federal complaint.  This strategy was further complicated by the fact that the state and federal design standards, while substantially similar, provided different requirements for curb cut design and locations.   Federal standards allow apex curb cuts but state requirements do not.  Perpendicular curb cuts are allowed under both standards and would have provided strict compliance with both state and federal accessibility design standards.  Unfortunately, however, in the Town streetscape project perpendicular curb cuts would not provide appropriate access to people using wheelchairs and/or conflicted with storm drains, utility poles, and/or presented traffic safety issues.  Since both the state and federal regulations apply independently to the design of the project, neither one takes precedence over the other.
 
In addition to difficult issues relative to curb cut design and location, the Town sidewalks themselves presented a problem with respect to cross slopes.  Applicable federal highway standards set a maximum curb reveal of seven inches.  In the downtown area of the Town, the elevations of various store entrances are considerably higher than the curb elevation.  As designed by the Engineering Firm the streetscape used a “wave” approach which made minor adjustments in cross slope as needed to provide smooth transitions between the curb and store entrances.  This solution, while minimizing the cross slope from the curb to store entrances, did not comply with the state 2% cross slope requirement and also (as alleged by the MAAB complainant) presented unnecessary difficulties for handicapped persons trying to maneuver along the sidewalk.
 
Undaunted by the various factors which complicated this issue, the Engineering Firm and its accessibility consultant moved forward by first meeting with the complainant, town officials, and the Town Commission on Disability.  Through a series of meetings the Engineering Firm was able to demonstrate how its design – while not perfect given the pre-existing steep slope of the side walks and roadways - had significantly improved the original conditions.  In these educational meetings, the Engineering Firm also: (1) attempted to communicate the extent to which objective constraints made it impossible for the Town streetscape to comply in all respects with MAAB Regulations; and (2)  explored various alternative solutions.
 
It bears noting that by remaining involved in the project despite allegations that its design violated applicable regulations, the Engineering Firm was able to play a lead a role in the appropriate remedy to the accessibility issues.  Although the Engineering Firm was not paid for these services, nevertheless, this was a wise decision.  Looked at from the flip side of the coin, if the Engineering Firm had quit the project at this point, it would have soured relations with the Town and would necessarily have led to a situation in which Engineering Firm had no say in the appropriate remedial plan.  It often happens that if the original designer leaves a project in times of trouble, the successor engineer in the interest of being conservative, will come up with a repair scheme which costs considerably more than might otherwise be the case.  In addition, owners inevitably seek to recover from the original designer the cost of its successor.  Finally, the successor engineer can hardly ever prepare a remedial design as cost-effectively and efficiently as the original designer.
 
The Engineering Firm’s plan to work with local constituencies and to move forward with a variance request was complicated by the fact that MAAB requirements themselves were in a state of flux.  Depending upon how and when MAAB Regulations changed, the appropriate “fix” to the streetscape would be affected.  Having a good sense of how the MAAB regulations were to be changed, the accessibility consultant assisted the Engineering Firm in preparing a remedial plan that would have the best likelihood of addressing the majority of the MAAB issues and also would repair the contractor’s poor workmanship.
 
Regardless of the Engineering Firm’s willingness to work with the Town to move forward and address the accessibility and construction workmanship issues, progress was slowed by the unwillingness of the contractor to come to the table.  The Town grew frustrated by the lack of progress and on April 13, 2001, filed suit against the contractor, the surety, and the Engineering Firm.

LEGAL CLAIMS
 
In its civil Complaint the Town asserted claims against Engineering Firm for Breach of Contract (Count I), Negligence (Count II), and Violations of Chapter 93A (Count III).[5]  The Town complained that the Engineering Firm’s design violated MAAB Regulations in that the “sidewalk slopes were in access of those permitted by the regulations,” curb cuts violated ADA Regulations, and the Engineering Firm allegedly failed to monitor the performance of the Contractor.
 
The Town also asserted claims against Contractor and its surety for breach of Contract (Contractor) and liability under the performance bond (surety).  The primary complaint against the Contractor was that its work was plagued by significant construction deficiencies and discrepancies and it failed to complete its work within the time allotted pursuant to the construction agreement.
 
Despite the fact that the Town initiated litigation, the Engineering Firm continued to work with the Town to address the accessibility issues.[6]  Once the scope of the anticipated changes to the MAAB Regulations became known, the Engineering Firm followed through with an application for a variance before the MAAB.  On August 27, 2001 the Engineering Firm appeared before the MAAB and presented its revised plan for the project.  To implement the revised plan, it would be necessary to obtain variances relative to sidewalk cross slopes, curb cuts, and crosswalks.  As stated by the chairman of the MAAB at the variance hearing, the MAAB could only grant variances “if compliance with the regulations is proven to be technologically unfeasible or if the cost for compliance is considered excessive without providing a substantial benefit for persons with disabilities.”
 
One of the primary issues presented in the variance request concerned perpendicular versus apex curb cuts.  Under applicable Massachusetts regulations, apex curb cuts are not allowed.  The Engineering Firm had designed (and the Contractor had installed) apex curb cuts to comply with applicable ADA regulations.  Although a member of the local commission on disabilities appeared at the hearing and voiced criticism of the apex curb cuts, the MAAB found consistently either that the apex curb cuts were superior to perpendicular curb cuts, and/or it was impracticable to bring curb cuts into full compliance with the “perpendicularity” requirement.
 
Another issue under consideration concerned existing cross slopes of sidewalks.  MAAB Regulations require that cross slopes of sidewalks not exceed 2%.   The Engineering Firm’s design had improved upon original conditions and had lessened cross slopes as much as possible without performing such extreme measures as raising the roadway or lowering entrances to the existing buildings.  The Engineering Firm argued to the MAAB that its design had improved conditions as much as feasible and practical.  For example, the Engineering Firm had raised curbs as much as possible and effectively eliminated two to three inches of drop along the sidewalks.  The MAAB understood that the Town could not force the merchants along the sidewalks to modify their entrances so as to facilitate a decrease in the cross slope.  The Board was impressed by the fact that the Engineering Firm had improved upon the original grades even though the as-built condition did not comply fully with regulations.  The Board found that it was not feasible to reconstruct all of the existing cross slopes to comply with the 2% requirement “without significant use of steps, ramps and railings that will create barriers and circuitous access patterns to the existing store entrances.”
 
Finally, the Engineering Firm requested a variance with respect to cross slopes of walkways at steep intersections.  Existing grades at several intersections ranged from 6% to over 11% longitudinally extending away from the intersection.  Reconstructed walks necessarily had to transition back to existing walks at the adjacent project limits.  In order to create ramps and landings that were at or near compliance at the intersections, resulted in steeper, more non-compliant situations in the transitions back to the existing walks extending down the side streets.  The Board agreed with the Engineering Firm’s assessment that the existing condition (i.e., steep cross slopes) could not be mitigated because of existing topography.
 
Even though the Engineering Firm was successful in obtaining relief for all variances requested, the dispute with the Town was not immediately resolved given:  (1) the continuing intransigence of the contractor; and (2) the fact that the project as revised would still violate certain ADA requirements.  Implementation of the repair plan was also complicated by the fact that the Town’s funding source was due to disappear if repairs were not made by June of 2002.  If this funding source were taken away, then the scope of repair that the Town could perform would be greatly curtailed.  This deadline also essentially precluded the Town from putting the repairs out to public bid.
 
As is often the case when dealing with municipal entities, settlement discussions with the Town did not go as quickly as one would have liked.  The Town was not particularly quick in responding to the Engineering Firm’s settlement proposals.  As a result the Town’s ability to negotiate was hampered by the fact that the involved Town agencies essentially had to reach consensus before the Town could move forward.  In the end, the Town and the Engineering Firm were able to reach agreement concerning the accessibility issues.  This settlement included Dufresne-Henry, Inc.’s preparation of remedial plans (i.e., depicting the work that needed to be done after receiving the MAAB variances in order to improve accessibility and also to correct contractor deficiencies), limited construction administration services adjoining the repair work, and the payment of a modest amount of money.[7]
 
It bears noting that the Engineering Firm’s settlement position was helped by the limitation of liability provision in its contract with the Town.   From the Town’s perspective, its overall problem was larger than just the MAAB accessibility issues.  Looked at from a cost-to-fix perspective, a larger problem for the Town was the deficient construction by Contractor.  Unfortunately for the Town, the Contractor for all intents and purposes went out of business and its surety went bankrupt.  Although the Contractor retained sufficient assets to perpetuate its counterclaims against the Town, it was far from clear that there were sufficient funds to compensate the Town in the event that the Town prevailed in its claims against the Contractor.  Given this situation, the Town seriously considered the possibility of trying to recover all of its damages from the Engineering Firm.  As noted above, the limitation of liability provision in the Engineering Firm’s contract with the Town limited the Town’s recovery to the amount of fees paid to the Engineering Firm  This amount was less than what the Town considered to be its overall damages.  When considering its options, the Town quickly reached the conclusion that it made financial and practical sense to settle with the Engineering Firm as outlined above rather than to seek recovery of 100% of its damages from the Engineering Firm and alienate the Engineering Firm in the process.
 
As noted above, the solution that the Engineering Firm was able to implement resolved state accessibility requirements but did not specifically address ADA requirements.  Given the lack of a variance procedure under ADA, there was no viable method for the Engineering Firm to establish that the new design complied with ADA requirements as much as possible (and/or to determine the extent to which it did not so comply).  In settling with the Town, the Engineering Firm considered the possibility that a third party might bring an ADA complaint in the future, discounted the likelihood of such a scenario, and opted to move forward with the settlement.  To understand the thought process that resulted in this decision, it is helpful to consider in general terms how the ADA applies to streetscape projects such as the Town project.

ADA - GENERAL PRINCIPLES
 
The Americans with Disabilities Act (“ADA”) under Title II prohibits a public entity[8] from excluding disabled persons from participation or benefits of services, programs, and activities when the exclusion or denial occurs by reason of such disability[9]  The ADA divides the scope of the physical accessibility requirement into two different areas.[10]  If the facility is deemed to be an “existing facility,” then the
 
“public entity shall operate each service, program, or activity so that the service, program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.”  See 28 C.F.R. § 35.150 (a).
 
Furthermore, this section does not require “a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of the service, program, or activity or in undue financial and administrative burdens.”  (Emphasis added.)  See 28 C.F.R. § 35.150 (a) (3).[11]  The code outlines a procedure for each public entity to comply with the requirements of 28 C.F.R. § 35.150.  Under this section, a “public entity may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities . . . or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities.”  (Emphasis added.)  See 28 C.F.R. § 35.150 (b).  This being said, however, “a public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section.”  See 28 C.F.R. § 35.150 (b).
 
In contrast, the physical accessibility requirement for new construction and alterations are more stringent than the requirements under the existing facility context.  Compare 28 C.F.R. § 35.151, and 28 C.F.R. § 35.150; see also Kinney v. Yerusalim, 812 F. Supp. 547 (3^rd Cir. 1993) (describing the standards under 28 C.F.R. § 35.151 as being more rigorous than under 28 C.F.R. § 35.150).  Under this standard, a new design and construction “shall be designed and constructed in such manner that the facility is readily accessible to and usable by individuals with disabilities.  (Emphasis added.)  28 C.F.R. § 35.151 (a).
 
In the Kinney case the court of appeals upheld a district court determination that the City of Philadelphia was required to install new curb cuts when the city undertook to resurface streets.  The city had argued that it was an extreme financial hardship to install curb cuts at each intersection especially considering that the city did not anticipate that its resurfacing  of streets would affect curbs at all.   The court determined that the street resurfacing that the city planned to do constituted an “alteration”  which came under the more stringent section of the regulations.  An “alteration” of a facility is defined and governed by 28 C.F.R. § 35.151 (b).  Under this section, “[e]ach facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities.”[12]  (Emphasis added.)  See 28 C.F.R. § 35.151 (b).  Furthermore, 28 C.F.R. § 35.151 (e), in describing a public entity’s responsibilities in constructing curb ramps, states that “[n]ewly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway.”  See 28 C.F.R. § 35.151 (e).  41 C.F.R. § 101-19.6, App. A, sets forth the technical requirements of compliance under these sections.
 
The Kinney court noted that the removal of architectural barriers and, in particular, the installation of curb ramps was a major concern to Congress in passing the ADA.  Congress specifically identified the “`discriminatory affects of architectural . . . barriers . . . ´ as one of the evils which the ADA was intended to address” the court noted.  Id. at 548 (citing 42 U.S.C. § 12101.)  Furthermore, the court elaborated on the difference between the “two-tiered process which distinguishes between a public entity’s responsibilities concerning ´existing facilities` . .  . and ´new construction or alterations.`”  As to existing facilities, the court noted that public entities need only operate programs, services and activities in a manner that is readily accessible to and usable by individuals with disabilities.  Under this provision, public entities are entitled to an undue burden defense in which the public entity is not required “to take any action that it can demonstrate would result in a fundamental alteration in the nature of the service, program, or activity or in undue financial or administrative burdens.”  Id. at 548 (citing 28 C.F.R. § 35.150 (a) (3)).
 
In contrast, the court noted, “the regulations are more demanding with respect to new construction and alterations,” requiring public entities to make its’ facilities “accessible” when the public entity engages in new construction or alterations.  In determining whether resurfacing the road constitutes an “alteration” triggering the provisions of 28 C.F.R. § 35.151 (e), the court stated that the ADA defined “alteration” as a “change to a building or facility made by, on behalf of, or for the use of a public accommodation or commercial facility, that affects or could affect the usability of the building or facility . . .”  Id. at 550.  The court further stated that whether resurfacing a street constitutes an alteration is therefore “dependent on whether resurfacing affects the usability of the street.”  Id. at 551.  The court concluded that resurfacing the street does affect the usability of the street.
 
Applying this understanding to the facts of the Town case, it is clear that that 28 C.F.R. § 35.151 would apply to the requirements of the Town in complying with the ADA as an “alteration.”  As set forth below, cases have determined whether the undue burden defense is available under 28 C.F.R. § 35.151 and have found by strictly construing the language of the regulation that the defense is inapplicable to new construction and alterations.   What this means is that for all practical purposes, a municipality can not use an argument of undue financial burden to avoid application of ADA regulations when dealing with an “alteration” of an existing facility or new construction.  While a municipality can not argue that compliance with ADA requirements would create an undue financial burden, it can argue that, under the circumstances, full compliance is not mandated and that compliance to the “maximum extent feasible” is appropriate.  See Seth J. Elin, Comment, Curb Cuts Under Title II of the Americans With Disabilities Act:  Are They Bringing Justice or Bankruptcy to Our Municipalities?, 28 Urb. Law. 293 (1996) (discussing “maximum extent feasible” as a defense).
 
HOW PRIVATE LAWSUITS UNDER THE ADA HAVE FARED IN COURT
 
Although only a few cases have been brought under the ADA concerning curb or sidewalk violations, these cases can be summarized and distinguished on the basis that the municipality failed to install curb ramps or failed to take any remedial action to comply with ADA regulations.  Not surprisingly, in such instances, the courts have required the city to take steps to comply with the regulations.  There are no reported cases in which a municipality attempted to comply with curb ramp requirements, but was unable to comply because of problems not within the city’s control.[13]  The closest analogy would be the case of Kinney v. Yerusalim, 812 F. Supp. 547 (3^rd Cir. 1993) in which the city argued that it was an undue financial burden to comply with the regulations.  In that instance, the court was aware that the city was faced with the possibility of bankruptcy if it were forced to comply with the ADA requirements, but required compliance nonetheless.  See generally Seth J. Elin, Comment, Curb Cuts Under Title II of the Americans With Disabilities Act:  Are They Bringing Justice or Bankruptcy to Our Municipalities?, 28 Urb. Law. 293 (1996) (discussing the problems posed financially to cities who are forced to comply with the ADA regulations).
 
Furthermore, the court addressed whether the city was entitled to an “undue burden” defense.  The city also cited to the provisions outlined in 28 C.F.R. § 35.150 (3) and stated that “a public entity is not required ‘to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.’”  The court disagreed with the city’s arguments, stating that these provisions of the Code of Federal Regulations refer to “existing facilities” and not to “new construction and alterations.”  the court stated that this “is separate and distinct from the provisions governing ‘new construction and alterations’ under 28 C.F.R. § 35.151.  There simply is no general ‘undue burden’ defense in the ADA.”  Id. at 551.
 
Moreover, in Deck v. City of Toledo, 10 A.D. Cases 156, the plaintiffs brought an action against the City of Toledo seeking to enforce compliance with the curb ramp standards required by the ADA.   The plaintiffs alleged that the City had repeatedly failed to comply with federal regulations that required the City to install curb ramps and to modify existing curb ramps.  The plaintiffs sought declaratory and injunctive relief, damages, costs and fees.  The court ruled on the injunction and held that the City must bring its streets into compliance.  The plaintiffs then brought a motion for summary judgment seeking a ruling that the defendants, as a matter of law, repeatedly failed to install curb ramps where required or have installed defective curb ramps.[14]
 
The court stated that under the Code of Federal Regulations, 28 C.F.R. pt. 36, app. A, the slope of any curb cannot exceed 1:12 and that any transition from the ramp to a walk, gutter or street must be flush.  The court recognized that the plaintiffs’ affidavits indicated that many of the curb ramps in the City had slopes steeper than the 1:12 requirement.  The court ruled in favor of the plaintiffs, however, because the defendants did not dispute any of the factual allegations submitted by the plaintiffs.  Moreover, the court disregarded the defendants’ argument, which stated that summary judgment is inappropriate because the City had taken steps to remedy the curb ramp violations.  The court consequently granted the plaintiffs’ motion for summary judgment.
 
CAN A MUNICIPALITY USE “IMPOSSIBILITY” OR “IMPRACTICALITY” AS A DEFENSE
 
Structural impossibility has been used as a defense to a claim of an ADA violation.  SeeJones v. Sheahan, No. 97-C-3471, 1999 WL 1024535, *1 (N.D. Ill. 1999) (Coar, J.). In this case, the plaintiff brought an action against the defendants for violations of the ADA, alleging, among other things, that the defendants failed to make reasonable accommodations in a corrections facility  because the defendants did not provide the plaintiff with wheelchair ramps.  The plaintiff was confined to his wheelchair and had to rely on elevators to travel from one floor to another. The plaintiff contended that the facility should be required to install a ramp between floors.  The United States District Court in Jones found against the plaintiff on the basis that a wheelchair ramp extending between the first and second floors of a correction facilities center would be a “structural impossibility.”  This result may be attributable to the fact that the plaintiff was essentially proceeding pro se and did not have extensive technical support.  Perhaps if plaintiff had more resources he would have been able to rebut the defendant’s rather perfunctory assessment that it was a structural impossibility to install the requested ramp.

HAVE COURT AWARDED DAMAGES FOR VIOLATIONS UNDER THE ADA
 
Volume 42  of the United Stated Code, § 12133 provides that “[t]he remedies, procedures, and rights set forth in section 794a of Title 29 8 shall be the remedies, procedures, and rights of this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.”  See 42 U.S.C. § 12133.  Section 794a of the Rehabilitation Act refers to 42 U.S.C. § 2000e-16 of the Civil Rights Act of 1964, including the sections of 42 U.S.C. § 2000e-5 (f) through (k), in conferring the remedies, procedures and rights of the Rehabilitation Act.  In interpreting the maze of statutory damages provided under the ADA, it appears that 42 U.S.C. § 2000e-5 (f) through (k) provides injunctive and declaratory relief, compensatory damages and attorney’s fees; however, many of these provisions are contingent upon a showing of “intentional” conduct.  See 42 U.S.C. § 2000e-5 (f) through (k); see also Proctor v. Prince Georges Hosp. Ctr., 32 F. Supp.2d 820, 828-29 (holding that compensatory damages are only available by showing intentional discrimination, which is defined as an “intentional, or willful, violation of the act itself”); Matthews v. Jefferson, 29 F. Supp.2d 525, 534-36 (W.D. Ark. 1998) (holding that in order to receive compensatory damages the plaintiff must prove a “discriminatory intent”).  Punitive damages, however, are generally not available under Title II of the ADA.  See Harrelson v. Elmore County, 859 F. Supp. 1465, 1468 (M.D. Ala. 1994) (determining that punitive damages are not available under Title II of the ADA because Title I of the ADA  “counsels against a statutory construction that punitive damages are available under Title II by inference.”).  But see Hernandez v. City of Hartford, 959 F. Supp. 125, 134 (D. Conn. 1997) (concluding that punitive damages are available under Title II of the ADA because punitive damages are available under the Rehabilitation Act).
 
Attorney’s fees are available under 42 U.S.C. § 12205 of the ADA.  See 42 U.S.C. § 12205; see also 28 C.F.R. § 35.175.  In reviewing the Massachusetts case law interpreting attorney’s fees under Title II of the ADA, Bercovitch v. Baldwin School, 9 AD Cases 1210 (1^st Cir. 1999) denied attorney fees to the defendant.  The defendant could not recover attorney's fees unless the court found that the plaintiff's action was frivolous, unreasonable, or without foundation.  Id. at 1211-12.  Attorney's fees include litigation expenses and costs. See 42 U.S.C. § 12205; see also 28 C.F.R. § 35.175.
 
Finally, it should be pointed out that there is a provision of the Federal Regulations regarding State Immunity.  Under that provision, “[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this Act.  In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and in equity) are available for such violation to the same extent as such remedies are available in an action for such a violation in an action against any public or private entity other than a State.”  See 28 C.F.R. § 35.178.

CONCLUSION

As noted above, in deciding whether to settle with the Town, the Engineering Firm had to assess the likelihood that a third party would file a federal claim alleging violations of ADA.  If the Engineering Firm determined that this risk was sufficiently great and/or that this risk, while statistically small, presented a potentially huge financial damages component, then it would not make sense to settle the MAAB issues with the Town while leaving the ADA issues unresolved.  After considering the issues discussed above concerning the technical requirements of the ADA, the distinction between existing facilities and “alterations,” and the track record of case law interpreting the ADA, the Engineering Firm decided that it made sense to go forward with the settlement.  As noted above, the fact that the Engineering Firm was able to consider settlement at all stems in large part to the fact that the Engineering Firm remained involved in the project even after the citizen advocate filed a complaint with the MAAB and after the Town filed suit.  To the extent that there is a moral to this story, it is that by remaining engaged in the project and playing an instrumental role in resolving the client’s complaints, the Engineering Firm was able to bring about the least objectionable settlement result.  In the process, the Engineering Firm maintained good relations with its client and solidified its reputation as a diligent and professional engineering firm.