APR 29 1996

The Honorable Kay Bailey Hutchison United States Senator 10440 N. Central Expressway Suite 1160, LB 606 Dallas, Texas 75231-2223 Dear Senator Hutchison: I am responding to your letter on behalf of your constituent, Mayor Kel Seliger of the City of Amarillo, Texas, expressing his opposition to the Department of Justice's proposed amendment to the Department's regulation implementing title II of the Americans with Disabilities Act of 1990 (ADA). Mayor Seliger's opposition is apparently based on the mistaken belief that this proposed rule will increase a public entity's obligations under title II. To the contrary, the proposed rule (copy enclosed), which was published by the Department on November 27, 1995, would amend the title II regulation to give public entities an extension of time in which to complete the installation of curb ramps in existing pedestrian walkways where it is necessary to comply with the "program accessibility" requirements of title II. The title II regulation (copy enclosed) now requires public entities to make physical changes to facilities if it is necessary to provide "program accessibility." Required changes were to have been made by January 26, 1995, unless the covered entity could demonstrate that compliance with this deadline would result in undue financial and administrative burdens. Section 35.150(d)(2) of the regulation expressly provides that If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas. (emphasis added)

cc: Records; Chrono; Wodatch; McDowney; Blizard; FOIA. \udd\blizard\rules\curbcuts\htchison.ltr\sc. young-parran 01-04232 -2The preamble to the title II regulation (at p. 35710) explains that -The legislative history of title II of the ADA makes it clear that . . . "local and state governments are required to provide curb cuts on public streets." Education and Labor report at 84. As the rationale for the provision of curb cuts, the House report explains, "The employment, transportation, and public accommodation sections of . . . [the ADA] would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between the streets." Id. . . . The preamble goes on to explain that in order to implement this requirement, section 35.150(d)(2) was included in the title II regulation to clarify the application of the general requirement for program accessibility to the provision of curb cuts. This paragraph requires that the public entity's transition plan include a schedule for providing curb ramps at existing pedestrian walkways, giving priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, public accommodations, and employers, followed by walkways serving other areas. Pedestrian "walkways" include locations where access is required for use of public transportation, such as bus stops that are not located at intersections or crosswalks. The Department's Title II Technical Assistance Manual (copy enclosed) provides further guidance on this issue. Section II5.3000 of the Manual states that -[P]ublic entities may choose to construct curb ramps at every point where a pedestrian walkway intersects a curb. However, public entities are not necessarily required to construct a curb ramp at every such intersection.

Alternative routes to buildings that make use of existing curb cuts may be acceptable under the concept of program accessibility in the limited circumstances where individuals with disabilities need only travel a marginally longer route. In addition, the fundamental alteration and undue burdens limitations may limit the number of curb ramps required. To achieve or maintain program accessibility, it may be appropriate to establish an ongoing procedure for installing curb ramps upon request in areas frequented by individuals with disabilities as residents, employees, or visitors. 01-04233 -3In March 1995, Senators Dole, Harkin, Hatch, Kennedy, and McCain, who were among the principal Senate sponsors of the ADA, wrote to Attorney General Reno on behalf of public entities who had called to their attention the fact that many jurisdictions had been unable to meet the January 1995 deadline, as it applied to the installation of curb ramps. The Senators recommended that the Department's rule be amended explicitly to grant an extension of time for public entities to meet their obligation to provide access to existing public sidewalks. After careful consideration, the Attorney General concluded that such an extension would be reasonable and appropriate. Therefore, she authorized the publication of this proposed rule, which would extend the deadline applicable to walkways serving public buildings, transportation stops, business and commercial facilities, and the residences of people with disabilities to January 26, 2000, and extend the deadline in other areas until January 26, 2005. The Department actively solicited public comment on this proposed rule. In order to ensure that comments were received from a wide range of interested parties, the Department supplemented the traditional notice and comment procedures by making the proposed rule available on the Internet through the Department's home page and through Internet sites maintained by and for disability rights organizations and public entities. The public comment period closed on March 1, 1996. More than 450 comments on this proposal have been received by the Department, including those submitted by Mayor Seliger. Please

accept my assurance that each of these comments will be carefully reviewed and considered by the Department before a final rule is published. I hope that this information is helpful to you in responding to Mayor Seliger. Sincerely, Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosures 01-04234 KAY BAILEY HUTCHISON TEXAS SCIENCE, AND TRANSPORTATION United States Senate SELECT INTELLIGENCE WASHINGTON, DC 20510-4304 March 18, 1996 RESPECTFULLY REFERRED TO: Mr. John L. Wodatch Chief, Disability Rights Section Civil Rights Division U.S. Department of Justice Box 65485 Washington, DC 20035 Dear Mr. Wodatch: The attached communication was forwarded to Senator Hutchison by the Mayor of Amarillo, who is concerned about a matter that falls within your agency's jurisdiction. I would appreciate it if appropriate inquiries could be initiated on this individual's behalf, and if a full response could be prepared for me to report to the constituent. It would be very helpful if the attached were to accompany your response. In the event you require more information, please do not COMMITTEES: ARMED SERVICES SMALL BUSINESS COMMERCE,

hesitate to contact me in Dallas at (214)361-3500. Thank you for your courtesy. PLEASE REPLY TO: Office of Senator Kay Bailey Hutchison Attention: Mary Fae Kamm 10440 North Central Expressway, Suite 1160 LB 606 Dallas, Texas 75231 Enclosure 01-04235 CITY OF AMARILLO February 12, 1996 KEL SELIGER MAYOR The Honorable Kay Bailey Hutchison United States Senator Room 703 Hart Office Building Washington, D.C. 20510 Dear Senator Hutchison: Enclosed is a letter mailed from this office that is largely self explanatory in the concerns it expresses. But as we ask for your assistance and counsel, there are a couple of important points to make. The Amarillo City Commission has been unanimous in its support for the American with Disabilities Act. We believe it is necessary to make all facilities in the city accessible to all of our citizens and in so doing the city might take advantage of the skills of all of our citizens regardless of their capabilities. The City of Amarillo is also in full compliance with the Americans with Disabilities Act and intends to continue to provide access and utility to all city facilities. The newest iteration of this act is so sweeping in its scope and so expensive as to constitute an unfunded mandate of enormous proportions. It is quite likely that if implemented in the form proposed, compliance with the Act will supplant some rather important municipal programs such as public safety and environmental protection.

We believe that the implementation of the Americans with Disabilities Act should be integrated into ongoing programs of maintenance and construction so as to be as economical as possible. Over time this should provide for the sort of accommodation prescribed in the enclosed letter without crippling a city's ability to provide other services. The members of the Commission and I look forward to hearing your views on the subject and are always available to discuss the implementations of this important program. Sincerely, Kel Seliger Mayor Enclosure P.O. BOX 1971 AMARILLO, TEXAS 79186-0001 806/378-3000 FAX 806/3789394 01-04236 CITY OF AMARILLO KEL SELIGER MAYOR January 16, 1996

Mr. John L. Wodatch Chief, Disability Rights Section Civil Rights Division U.S. Department of Justice Rulemaking Docket 007 P.O. Box 65485 Washington DC 20035 Re: City of Amarillo, Texas comments related to U.S. Department of Justice Proposed Rule to amend 28 CFR 35.150, Americans with Disabilities Act Dear Mr. Wodatch: As Mayor of the City of Amarillo, Texas, please allow me to respond on behalf of our local government organization concerning the Proposed Rule to 28 CFR 35.150 which if approved would mandate our City to comply with the following: * The installation of curb ramps or other sloped areas at all intersections where there are existing pedestrian walkways (the Americans with Disabilities Act presently only requires curb

ramps to be installed on newly constructed or altered streets, public transportation stops and to provide disabled access to selected government buildings and facilities). * Require the City to provide curb ramps serving the residences of individuals with disabilities with said installations receiving priority over other installations in the community (the Americans with Disabilities Act presently does not require this). The Proposed Rule to amend 28 CFR 35.150 of the ADA is another attempt of the Federal Government to impose extremely detrimental financial and operational impacts on local government. This attempt is therefore surprising given the well known and documented adverse reactions of the American people and the Congress and President of the United States concerning unfunded Federal mandates. We Elected Officials who are directly responsible to the residents and taxpayers of our communities obviously placed too much faith in the recent legislation enacted into law curtailing unfunded federal mandates. 01-04237 Mr. John L. Wodatch Page 2 January 16, 1996

To be specific, the Proposed Rule would directly create and perpetuate financial and operational problems for the City of Amarillo until the proposed compliance date of January 26, 2005. The following facts illustrate how: 1) The City of Amarillo presently has 5507 intersections that would be applicable under the Proposed Rule. Of this total, 4000 intersections or 73% would require the installation of new curb ramps or sloped areas. Pro-rated over the period from 1997 to 2005, this would mandate the minimum reconstruction of 400 intersections per year; 2) Each intersection shall require the reconstruction and installation of eight (8) individual curb ramps (Two (2) ramps per turning radius). The estimated cost for each ramp is $437.50 which equates to a total cost of $3500.00 per intersection; 3) With 4000 intersections mandated to be reconstructed, the estimated financial impact for compliance would be $14 Million Dollars ($14,000,000), in present day dollars; 4) The City of Amarillo, during the 1995/1996 Fiscal Year spent

$500,000.00 to install new curb ramps on arterial streets subject to simple paving overlays and for public transportation stops or waiting areas. It is estimated an additional expense of $1,350,000 will be necessary until the year 2005 for street maintenance reconstruction projects; 5) Combining the expected costs of $14 Million Dollars ($14,000,000) for mandated intersections along with $1,350,000 for street reconstruction, the total financial impact on the City of Amarillo shall be $15,350,000, again in present day dollars. Equally pro-rated, the mandate will require an additional governmental expense of approximately $1,918,750 per year. Our City does not now have revenue to accommodate this proposed mandate; 6) The City of Amarillo currently has an ad-valorem tax rate of 27.35 cents per $100.00 valuation. Based on a pro-rated additional annual expenditure of $1,918,750, the City would be forced to increase the ad-valorem tax rate to a minimum of 31.56 cents per $100.00 valuation, or a 4.21 cent per $100 increase; 7) An ad-valorem tax rate increase to 31.56 cents per $100.00 valuation would result in an increase in the effective tax of approximately 15.5%. State law in Texas does allow a governing body of a municipality to increase its ad-valorem tax rate annually, however any ad-valorem tax rate increase of 8% or greater is subject to a taxpayer petition process to force the governing body to conduct a tax rollback election or referendum. If voters approve of a rollback, the governing body is 01-04238 Mr. John L. Wodatch Page 3 January 16, 1996

required by law to reduce the ad-valorem tax rate to the rollback level or less and refund all tax monies collected above the rollback rate to applicable taxpayers. This very thing occurred in our community several years ago when the County government increased its ad-valorem tax rate above the 8% level. Please let me assure you the potential of a tax rollback election is very great if the City of Amarillo has to raise the ad-valorem tax rate over 15% to fund this proposed federal mandate. Without an ability to raise taxes to accommodate this additional expense, our City will have no other recourse than to eliminate or reduce existing City services and programs; 8) The City of Amarillo does not presently have the staffing available

to accommodate the required reconstruction of 400 intersections per year. Quite frankly, even with use of private contractors to construct these new curb ramps, it is doubtful a logistical schedule to reconstruct 400 intersections per year could be achieved; 9) Per the 1990 Federal Census, the City of Amarillo had a total population of 157.615 persons. Of this total, 1047 persons between the ages of 16 and 64 were identified to be mobility impaired. Only 1556 persons the age of 65 and over were identified as mobility impaired. The Federal Census numbers thus identified a total of 2603 people or 1.7% of the City of Amarillo population to be mobility impaired. As census officials will also attest, it can be assumed many of 1556 persons the age of 65 and over are residents of nursing or convalescent homes and not subject to movement as pedestrians along city streets. The Proposed Rule therefore would mandate the City of Amarillo expend over $15 million dollars for approximately 1.5% of our total community population. I believe this is not a very effective or efficient use of taxpayer dollars; and 10) The proposed rule also mandates the City to implement a program to construct curb ramps at the residences of all disabled citizens. These ramp installations would also be required to occur prior to other mandated locations. Several years ago the City of Amarillo implemented a program to provide curb ramps upon request by disabled individuals. Since our program initiation, requests have averaged six (6) per year. The City promptly completed new curb installations for all requests to date. It is very interesting the U.S. Department of Justice desires to mandate the City to added expense and operational hindrances on this issue. Our existing established and publicized program obviously does not indicate this to be a measurable need or even desire of disabled Amarillo residents. In summary the Proposed Rule to amend 28 CFR 35.150 of the Americans with Disabilities Act would be an-unjustified and unreasonable demand on not only our City, but other local governments as well. The Proposed Rule shall have a financial and operational impact that is immensely unfundable and logistically impractical. There is no 01-04239 Mr. John L. Wodatch Page 4 January 16, 1996

sound or proven scientific or statistical basis to warrant its implementation. Most importantly, there has not been a demonstrated demand or request of disabled citizens and the general public in our City for additional Americans with Disabilities Act improvements of this

or any other nature. Those of us who are elected local government officials, directly represent and I can assure you know quite well the needs of the inhabitants of our communities. The U.S. Department of Justice needs to rethink its desire to mandate what our local residents need, want, or are even demanded to fund. Local government in Amarillo, Texas and the majority of communities in this country works very well. Please allow us to decide how to meet the true needs of our residents and how to fund these needs without detrimental and problem causing federal mandates. Sincerely, Kel Seliger Mayor jw 01-04240