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ADA requirements ignored at 99 Mass. Ave., writer says

Don Seltzer, a former resident who had lived in Arlington for 50 years, submitted this letter to the editor. It was also sent to the Arlington Disability Commission, the Select Board, ADA Coordinator Tim Ross; Christine Bongiorno, head of Health & Human Services; Mike Ciampa, head of Inspectional Services; Planning Director Claire Ricker and Town Manager Sandy Pooler.ADA logo

With increasing age, I have become more aware of barriers to those with limited mobility, and better informed of the architectural standards required by federal and state law. My wife and I now live in a senior community where a majority of our neighbors are directly impacted when these standards are ignored.

While observing the deliberations of Arlington’s Redevelopment Board over the last few years, I have come to the disappointing conclusion that the Americans with Disabilities Act is of very low priority among board members. Only one or two board members will bring up these requirements, but no one on the board has exhibited familiarity with these standards. The board as a whole does not want to consider how these standards apply to the projects they review, nor tolerate comments from residents on this issue. Instead, any such discussion is quickly cut off with the justification that these issues are not under the purview of the board, and rather should be left to the building inspector, after approval of the project. Yet the written findings for approved projects fail to even mention these concerns for the building inspector’s review.

4th-floor addition, ramp

The latest example is Docket #3728, 99 Mass. Ave., which includes the addition of a fourth floor to an existing building. The board approved a parking lot for six vehicles with narrow tandem parking spaces. The location of the spaces was adjusted to accommodate bicycle parking/storage, rather than the accessible parking space required by law under the ADA. The question of such a space was briefly raised by one board member, but was quickly disposed of as ‘not our problem; let the building inspector deal with it.’

The application also claimed an ‘ADA-accessible ramp’ to the ground floor level. In fact, it is not ADA-compliant. It was constructed without any regard to the state law defining accessibility, 521 CMR 24. Specifically, it violates the following:

24.2.1 Slope
24.2.2 Max Rise
24.4 Landings
24.4.3 Landing Length
24.4.5 Dimensions for Turning
24.4.6 Doorways at Landings
24.5.1 Handrails
24.5.2 Handrail Height
24.5.4 Handrail Extensions

The addition of a fourth-floor penthouse will cost more than $100,000, which triggers a requirement for providing an accessible entrance to the building. As noted above, the ramp that was added to the side of the building, without authorization by either the ARB or ZBA, is not compliant with state law.

The most significant issue may be the lack of an elevator for the proposed four story building. Federal law does not normally require one for floor areas of less than 3,000 square feet, but there is a notable exception. The applicant has stated during the hearings that one of the businesses on an upper floor is a therapy center. This triggers the federal ADA requirement for an elevator in the four-story building.

No exception

99 Mass. Ave. is not an exception. It is indicative of how the ARB routinely ignores ADA issues, dismissing them as mere details to be handled by Inspectional Services. This is despite the clear direction given to the ARB in the zoning bylaw regarding Environmental Design Review Standards:

Circulation: With respect to vehicular, pedestrian and bicycle circulation, including entrances, ramps, walkways, drives and parking, special attention shall be given to location and number of access points to the public streets (especially in relation to existing traffic controls and mass transit facilities), width of interior drives and access points, general interior circulation, separation of pedestrian and vehicular traffic, access to community facilities, and arrangement of vehicle parking and bicycle parking areas, including bicycle parking spaces required by Section 6.1.12 that are safe and convenient and, insofar as practicable, do not detract from the use and enjoyment of proposed buildings and structures and the neighboring properties.

The board was advised of these ADA-compliance issues back in December. But it wasn’t until early March that it was actually brought up at a hearing, and then very briefly. So briefly that it wasn’t even included in the minutes. As in other instances, the board decided to simply pass it along to Inspectional Services. But no one thought to actually seek the building inspector’s opinion, or that of the ADA compliance officer in the following three weeks before the board would approve the project.

Dealing with it down the road will not be simple. Complying with just the ADA parking space will require a parking reduction and relocation of the bicycle storage. The already built ramp will need to be completely dug up and replaced. 

Halt project, reopen docket?

Will the board halt the project and reopen the docket? Or will they simply throw up their hands and say that there is nothing they can do to rectify the matter? That was the board’s response to a related situation at the previously approved project at 1500 Mass. Ave. in which a builder eliminated the required ADA parking because of inconvenience, with the administrative approval of the Planning Department. When apprised of this and other violations, the ARB expressed their concern but chose to do nothing to rectify the violations.

Every hearing of the ARB includes a lengthy discussion over bicycle racks, covering the number, location and particular design. It is shameful that similar attention is not given to the needs of seniors and the disabled, and that state and federal laws are repeatedly being ignored through a combination of ignorance and lack of interest.

There is currently an open seat on the Redevelopment Board. It should be filled by someone with knowledge and respect for the law, and who places a high priority on the needs of seniors and those with disabilities.


This letter was published Friday, April 7, 2023.

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Comments

Guest - Don Seltzer on Saturday, 08 April 2023 13:30
Response to Gene Benson's 'The Correct Review'

Before responding, I would like to acknowledge that Gene Benson is the sole member of the current Board to show any concern for accessibility issues at these hearings. He is dealing with other Board members who refuse to discuss these issues or spout uninformed nonsense about supposed ‘grandfathering’ exceptions.

Regarding that ramp for 99 Mass Ave, the Board was misled into thinking that the already constructed ramp was ADA compliant except for a few minor tweaks to fix a drainage problem at the bottom and to remove one step at the entrance door.  But in truth, the ramp is so badly out of compliance with ADA requirements that it seems that there is no solution but to dig it up and start over, with a much longer ramp that will extend into the cramped parking lot.
Inspectional Services may have also been misled. The building permit did not even mention ADA compliance or an accessible entrance. It might have been interpreted as simply a convenience for FedEx deliveries and for able bodied persons.

Additionally, the original permit for that ramp should not have been granted a building permit by right. It eliminated nearly half of the lot's landscaped open space, placing it in serious non compliance with the zoning bylaws.  That should have required a hearing before the ZBA.
And because it was a significant alteration to the exterior of a building on Mass Ave, that should have triggered a requirement for the ARB to review.

The system is badly broken. Mr Benson states that I ignore the different roles of the ARB and Inspectional Services. Actually, I have observed that the Board and the Building Inspector are not communicating properly, and they have greatly different understandings of their roles. No one is informing the ARB on the laws requiring accessible access to buildings. The Board continues to approve projects that violate the relevant State laws (521 CMR) and Federal laws (ADA and the Fair Housing Act), and Inspectional Services fails to flag these violations. The ADA compliance office is completely out of the loop.

If a member of the public happens to notice and report these violations during construction, town officials start pointing fingers at others. But nothing is done to correct the violations. Inspectional Services does not issue a stop order, and the Board does not reopen the special permit for a new review. Everyone simply throws up their hands and say there is nothing that they can do. And the developer continues on with his noncompliant, non accessible project.

Don Seltzer

Before responding, I would like to acknowledge that Gene Benson is the sole member of the current Board to show any concern for accessibility issues at these hearings. He is dealing with other Board members who refuse to discuss these issues or spout uninformed nonsense about supposed ‘grandfathering’ exceptions. Regarding that ramp for 99 Mass Ave, the Board was misled into thinking that the already constructed ramp was ADA compliant except for a few minor tweaks to fix a drainage problem at the bottom and to remove one step at the entrance door.  But in truth, the ramp is so badly out of compliance with ADA requirements that it seems that there is no solution but to dig it up and start over, with a much longer ramp that will extend into the cramped parking lot. Inspectional Services may have also been misled. The building permit did not even mention ADA compliance or an accessible entrance. It might have been interpreted as simply a convenience for FedEx deliveries and for able bodied persons. Additionally, the original permit for that ramp should not have been granted a building permit by right. It eliminated nearly half of the lot's landscaped open space, placing it in serious non compliance with the zoning bylaws.  That should have required a hearing before the ZBA. And because it was a significant alteration to the exterior of a building on Mass Ave, that should have triggered a requirement for the ARB to review. The system is badly broken. Mr Benson states that I ignore the different roles of the ARB and Inspectional Services. Actually, I have observed that the Board and the Building Inspector are not communicating properly, and they have greatly different understandings of their roles. No one is informing the ARB on the laws requiring accessible access to buildings. The Board continues to approve projects that violate the relevant State laws (521 CMR) and Federal laws (ADA and the Fair Housing Act), and Inspectional Services fails to flag these violations. The ADA compliance office is completely out of the loop. If a member of the public happens to notice and report these violations during construction, town officials start pointing fingers at others. But nothing is done to correct the violations. Inspectional Services does not issue a stop order, and the Board does not reopen the special permit for a new review. Everyone simply throws up their hands and say there is nothing that they can do. And the developer continues on with his noncompliant, non accessible project. Don Seltzer
Guest - Eugene Benson on Friday, 07 April 2023 17:09
The Correct Review

In his letter Mr. Seltzer ignores the different roles of the ARB and the Building Inspector as well as the requirements of a Special Permit and the discussion about the proposed handicapped ramp.

The role of the ARB in a Special Permit / Environmental Design Review application is to determine if a project should receive a Special Permit under the requirements of the Zoning Bylaw. The role of the Building Inspector to determine if the project should receive the permits required by Inspectional Services, which includes compliance with the Building Code and other mandates such as handicapped accessibility. ARB issuance of a special permit is not a waiver of meeting the Building Code or accessibility requirements. In fact, the Zoning Bylaw specifically states that all special permits and other relief granted by the ARB are conditioned upon compliance with State Building Code and the Massachusetts Architectural Access Board where applicable.

Thus, Mr. Seltzer is incorrect in his assessment of the role of the ARB or his critique that there was no decision from the ARB about whether an elevator is required under the building code or whether there are handicapped accessibility issues. Those are determined by Inspectional Services if the project receives a Special Permit.

Further, at the first hearing on the application, on December 5, I raised the issue of whether the ramp met accessibility standards. The applicant noted that it did not and that they were working with Inspectional Services on a fix for that. At the third hearing I raised expressed concern about whether the parking area would require a handicapped space considering this project was in front of the ARB for the purpose of add a residential unit on another story to an existing building and that the parking area was currently nonconforming. The ARB determined that was a judgment that Inspectional Services would need to make.

I am a member of the ARB but this comment is made in my individual capacity and not as a member of the ARB. It has not been reviewed by the ARB.

In his letter Mr. Seltzer ignores the different roles of the ARB and the Building Inspector as well as the requirements of a Special Permit and the discussion about the proposed handicapped ramp. The role of the ARB in a Special Permit / Environmental Design Review application is to determine if a project should receive a Special Permit under the requirements of the Zoning Bylaw. The role of the Building Inspector to determine if the project should receive the permits required by Inspectional Services, which includes compliance with the Building Code and other mandates such as handicapped accessibility. ARB issuance of a special permit is not a waiver of meeting the Building Code or accessibility requirements. In fact, the Zoning Bylaw specifically states that all special permits and other relief granted by the ARB are conditioned upon compliance with State Building Code and the Massachusetts Architectural Access Board where applicable. Thus, Mr. Seltzer is incorrect in his assessment of the role of the ARB or his critique that there was no decision from the ARB about whether an elevator is required under the building code or whether there are handicapped accessibility issues. Those are determined by Inspectional Services if the project receives a Special Permit. Further, at the first hearing on the application, on December 5, I raised the issue of whether the ramp met accessibility standards. The applicant noted that it did not and that they were working with Inspectional Services on a fix for that. At the third hearing I raised expressed concern about whether the parking area would require a handicapped space considering this project was in front of the ARB for the purpose of add a residential unit on another story to an existing building and that the parking area was currently nonconforming. The ARB determined that was a judgment that Inspectional Services would need to make. I am a member of the ARB but this comment is made in my individual capacity and not as a member of the ARB. It has not been reviewed by the ARB.
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