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Friday, January 01, 2010

Ind. Decisions - ND Judge rules LaPorte must replace crumbling sidewalks

A brief AP story this afternoon alerted the ILB to this Dec. 22, 2009 decision in Jon Culvahouse, et al. v. City of Laporte. From the story:

A federal judge says the northern Indiana city of LaPorte must improve or replace its crumbling sidewalks because they violate the Americans with Disabilities Act.

U.S. District Court Judge Robert Miller said in a December ruling that the city must undertake repairs to sidewalks estimated to cost up to $33 million.

Two disabled LaPorte residents sued the city in 2006, claiming the poor condition of city sidewalks prevented them access to municipal services, programs and activities, a violation under the ADA.

The city said property owners were legally responsible for the upkeep of public sidewalks, but the judge disagreed.

A court hearing to discuss the city's compliance options has not yet been scheduled.

Here is the 30-page opinion. Some quotes from Judge Miller's opinion:
Both sides seek summary judgment on the issue of whether sidewalks in the City of LaPorte violate Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. In reliance on 42 U.S.C. § 12132, the plaintiffs say the City’s sidewalks qualify as a “service, program, or activity” within the meaning of the ADA, so the City must make the sidewalks readily accessible to people with disabilities. The City responds, first, the sidewalks don’t constitute a service, program, or activity under the ADA; second, maintenance of existing sidewalks is the home owner’s responsibility under LaPorte City Ordinance No. 733, so requiring the City to repair or improve sidewalks would require implementation of a new service, program, or activity contrary to the ADA’s requirements; and, third, granting the requested relief would result in an undue financial burden to the City.

Realizing that these motions have been pending for far too long, the court apologizes for the delay and to prevent further delay declines to re-open briefing on the motions. After considering the parties’ arguments, the applicable provisions of the ADA and its 2008 Amendments, and the supplemental authorities cited by the parties, the court denies the City’s motion and grants the plaintiffs’ motion in part. * * *

Even if the parties could agree on the extent and cost of the needed work, they disagree about who has the responsibility to undertake and pay for the work. The plaintiffs say the City is obligated to repair the sidewalks under the ADA, an Indiana statute, and 120 years of Indiana case law. The City disagrees and claims it has no obligation to repair the sidewalks. According to the City, sidewalks don’t qualify as a “service, program, or activity” under the ADA and a 1939 LaPorte Ordinance imposes a duty on real estate owners, not the City, to maintain and repair the sidewalk(s) located on their property. The City also says that because historically it has chosen to not provide sidewalks and sidewalk maintenance to its citizens, any requirement to undertake such work now would amount to a new service not required by the ADA. * * *

The City next claims that even if the court determines that sidewalks are a service, program, or activity under the ADA, the City has no obligation to repair or maintain its sidewalks because the City doesn’t own them. The City says LaPorte Ordinance No. 733 governs. * * *

The City says its hands-off policy is further evidenced by the “hodge-podge and haphazard existence of sidewalks” within the City, which the City claims results from sidewalks being constructed at the whim of property owners completely independent of any ongoing program, service, or activity offered or sponsored by the City. * * *

The court can’t agree with the City’s position. Indiana municipalities have “exclusive jurisdiction over bridges[], streets, alleys, sidewalks, watercourses, sewers, drains, and public grounds inside [their] corporate boundaries, unless a statute provides otherwise.” IND. CODE § 36-1-3-9(a). Indiana courts over the years have continued to recognize municipalities’ authority and duty to keep their sidewalks in a reasonably safe condition for use by the public. * * *

In addition, various sections of LaPorte’s Municipal Code confirm the City’s authority and control over its sidewalks. * * *

Because the court concludes it is unable to determine, based on the record before it and the passage of time since the submission of relevant financial information, what options are or may be available to the City to assist with its obligation to make travel via City sidewalks “readily accessible to and usable by” persons with disabilities as required under Title II of the ADA, a hearing will be scheduled, following consultation with counsel, to discuss implementation of the injunctive relief requested by the plaintiffs.

Posted by Marcia Oddi on January 1, 2010 03:57 PM
Posted to Ind Fed D.Ct. Decisions