DEC 13 1995

Mr. David F. Tufaro
Executive Vice President
Summit Properties
1629 Thames Street
Suite 200
Baltimore, Maryland 21231

Dear Mr. Tufaro:

        I am responding to your letter to Attorney General Reno
commenting on the Americans with Disabilities Act (ADA) as
applied to public libraries. You state that improvements cannot
be made to the Roland Park Public Library in Baltimore City
because any alterations would have to be in compliance with the
ADA, which would be prohibitively expensive. Please excuse the
delay in responding.

        Title II of the ADA prohibits discrimination on the basis of
disability in State and local government services. The
Department of Justice's regulation implementing title II
(enclosed) attempts to balance the rights of individuals with
disabilities to participate in government programs, services, and
activities, with government entities' legitimate concerns about
cost and administrative difficulty. To achieve this balance, the
title II regulation provides flexible, performance-based
standards of accessibility for programs occurring in existing
facilities, where the cost of physical accessibility may be high.
For new or altered facilities, on the other hand, where access
can often be provided without significantly increased cost, the
title II regulation requires newly constructed or altered areas
to meet specific standards of accessible construction set out in
the ADA Standards for Accessible Design (Standards) or the
Uniform Federal Accessibility Standards (UFAS).

        Sections 35.149 and 35.150 of the title II regulation
require accessibility to State and local government programs,
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services, and activities in facilities existing on the effective
date of the statute, January 26, 1992. The principal focus of
the program accessibility standard is access to programs,
services, and activities, as opposed to access to physical
structures. Therefore, not every area of an existing public
library would have to be made accessible, as long as there is
access to the library's programs, services, and activities.

        For existing facilities, every building does not necessarily
have to be made accessible if all of the programs located inside
that building can be made accessible by alternative means.
Section 35.150(b)(1) of the title II regulation does not require
that a public library eliminate structural barriers if it
provides access to its programs through alternative methods such
as redesign of equipment, reassignment of services to accessible
buildings, assignment of aides to beneficiaries, delivery of
services at alternate accessible sites, alteration of existing
facilities and construction of new facilities, or any other
methods that result in making the services, programs, or
activities readily accessible to and usable by individuals with
disabilities.

        Thus, for instance, if a public library's open stacks are
located on upper floors having no elevator, as an alternative to
making the upper floors accessible, library staff may retrieve
books for patrons who use wheelchairs as long as the aides are
available during the operating hours of the library. Or, if a
public library has an entrance with several steps, the library
can make its services accessible in several ways. It may
construct a simple wooden ramp quickly and at relatively low
cost. Alternatively, individuals with mobility impairments may
be provided access to the library's services through a
bookmobile, by special messenger service, through use of clerical
aides, or by any other method that makes the resources of the
library "readily accessible." Priority should be given, however,
to methods that offer library services to individuals with and
without disabilities in the same setting.

        If structural alterations are necessary to provide program
accessibility, such alterations must be undertaken. However, a
public entity does not have to take any action that it can
demonstrate would result in a fundamental alteration in the
nature of its program or activity or in undue financial and
administrative burdens. This determination can only be made by
the head of the public entity or his or her designee and must be
accompanied by a written statement of the reasons for reaching
that conclusion. The determination that undue burdens would
result must be based on all resources available for use in the
program. If an action would result in such an alteration or such
burdens, the public entity must take any other action that would
not result in such an alteration or such burdens but would
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nevertheless ensure that individuals with disabilities receive
the benefits and services of the program or activity.

        You have correctly noted that if Baltimore City undertakes
structural alterations in order to provide program accessibility
or for any other reason, the title II regulation requires that
the altered areas comply with either the ADA Standards or the
UFAS. The Department of Justice believes this approach will
ensure full accessibility to people with disabilities in the long
term while allowing State and local governments to control and
minimize short-term costs.

        Your letter also raises issues pertaining to the
implementation of the Fair Housing Act. Please note that the
Fair Housing Act is enforced by the Department of Housing and
Urban Development. If you wish to contact that agency regarding
the law, you may write to: Ms. Bonnie Milstein, Director, Office
of Program Compliance and Disability Rights, Department of
Housing and Urban Development, 451 7th Street, S.W., Room 5112,
Washington, D.C 20410.

        I hope this information is helpful.

                                Sincerely,

                             John L. Wodatch
                                  Chief
                        Disability Rights Section
                          Civil Rights Division
Enclosure
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SUMMIT
PROPERTIES                              November 10, 1995

The Honorable Janet Reno
Attorney General of the United States
U.S. Department of Justice
Constitution Avenue & 10th Street, N.W.
Washington, D.C. 20530
                                        Re: American Disabilities Act
Dear Attorney General Reno:

        I read the article that you and former Attorney General Dick
Thornburgh wrote, celebrating the fifth anniversary of the American
Disabilities Act. While the intent of ADA is clearly positive, your general
statement does not square with the facts. I am going to cite some specific
examples.

        I live in Baltimore City. I have served on the Board of the Friends of
the Roland Park Public Library in Baltimore City. This is a two story
library sitting in the midst of our community. Although it is a small
branch of the Enoch Pratt Public Library System, it is one of the most
heavily utilized libraries in the City's system. We have many older citizens
of the community who use the library on a regular basis, and many students
come here after school gets out in the afternoon. The Friends of the Library
was formed several years ago to help address some physical deterioration of
the building because of the City's shortage of money, and also to enhance
certain resources of the library, i.e. magazine subscriptions and book
collections. The library is in need of both renovation and expansion. The
building consists of a basement, a ground floor which you have to access by
steps, and a second floor. The building is part of a one hundred year old
residential community which has been designated a historic district. The
library staff and the City are of the view based on ADA that improvements to
the building cannot be made without complying with ADA, which would be
prohibitively expensive.

          Your statement in the article that you wrote suggests that if
there were librarians available to assist handicapped persons that making the 
building handicap accessible would not be required. As you well know,
Baltimore,  like many other communities, does not have adequate funds to
service current needs. It is doubtful that one would believe 
that there are adequate librarians available to provide handicap needs. In any 
event, who is going to make that determinaton? Can the City make that judgment 
by itself. or is that

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going to be determined in Court when somebody files a lawsuit on behalf of a
handicap person? Baltimore can ill afford to have to spend additional money on
making a building like this accessible to the physically handicapped. I should
add that the library system has recently built a library specifically for
handicapped persons adjacent to the main library.

        Your examples of how matters are being interpreted reasonably are all
well and good. However, that in fact is not the way that decisions are made.
There is unlimited opportunity for second guessing. A private owner might
determine that a building cannot be made handicap accessible without an
inordinate amount of expense. The local jurisdiction, state or federal
government may make the determination that judgment is incorrect. A
handicapped person or group representing handicapped persons might bring a
lawsuit, which could result in substantial amounts of liability and punitive
damages. The law and regulations leave it very uncertain as to who is
handicapped and what is a reasonable effort made to accommodate handicapped
persons. It is left wide open and subject to litigation. This is not in the
best interest of society. 

        I am going to turn to another area with similar requirements to the
ADA that applies to multifamily housing. That is the Fair Housing Act of 1988.
This statute, which preceded ADA, imposed stringent requirements on
multifamily housing to make new properties handicap accessible. At least the
good thing about this law is that it was not applied retroactively. It applied
to building permits being issued after a certain date. The law requires that
all elevator apartment buildings allow wheelchair handicap accessibility to
100 percent of the apartments and through 100 percent of the apartments. This
includes  kitchens, bathrooms, and balconies, as well as all doorways. For
non-elevator multifamily buildings, all ground floor units have to be
accessible to the wheelchair handicapped. The problem arises with sites with a
lot of steepness, and there is a whole set of regulations determing the
percentage of  accessibility required based on the natural steepness of the
site. The law has added considerable cost to new apartments, which is the
sector of housing serving the lower echelon of income groups in this country,
by requiring wider doorways and doors, larger kitchens, larger bathrooms, and
much more grading of sites to accommodate the requirements. Moreover, it has
been an anti- environmental piece of legislation in that it has required a lot
more removal of trees than we would otherwise have done under normal
circumstances. 

        Prior to the federal law being passed, most states had their own 
requirements for handicap accessible units which were on the order of 2
percent, 4 percent or 5 percent of all of the apartments in an apartment
community. The multifamily industry never had sufficient demand to fill the
handicap units before the federal law was passed. We tried to get this message
across to Congress and ultimately to HUD charged with preparing the
regulations implementing the new law, but nobody would listen. The argument
was that wheelchair and handicap people should be able to go to the top of the
mountain. That may be a noble goal but is not a rationale for the kind of
federal requirements that were imposed at any expense.
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        Since the new federal law went into effect, the National Association
of Home Builders has done a survey which has shown that the number of handicap
persons occupying apartment units is not any higher than it was before. That
is also something that we have been telling HUD and our elected members of
Congress. The survey showed that out of 695,214 apartments less than 1% are
occupied by disabled persons. A copy of the NAHB survey is attached.

        The issue from the experience of people who are in the business of
developing and managing apartments is one of affordability for handicap
persons, not accessibility. So the solution imposed by Congress on behalf of
certain elements of the handicap community was the wrong one, and it was a
very expensive one. If Congress had been willing and open minded enough to
listen to the people who manage apartments on a regular basis, they would have
known the real statistics and the nature of the problem. I might add that only
a portion of the handicap community pushed for the legislation.

        The net result of the handicap legislation adopted under the fair
housing law is just another reason in the litany of reasons the cost of
housing have been increased for everybody, making it less affordable to all
persons, both handicapped and non-handicapped alike, and we have not in fact, 
accommodated anymore handicapped persons. It is not an untypical case of
federal legislation which, though well intentioned in the broad scheme of
things, achieves nothing and in fact imposes greater costs on society (and I
might add this does not show up in the federal budget). Further, it leaves the
impression that people have been helped without in fact having helped them. To
top it all off, when the facts are in, nobody in Congress or the
Administration has the integrity or the strength to recommend changes in the
legislation to correct the errors.

        My hope, by writing this letter is that you will play the role of a
leader and be an advocate for changes that improve the various forms of
handicap legislation I have discussed here.

                                Sincerely yours,

                                David F. Tufaro
                                Executive Vice President
DFT/rmc
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