U.S. THIRD CIRCUIT

Heightened Independence and Progress Inc. v. The Port Authority of New York and New Jersey

CIVIL RIGHTS — ADA

New Jersey Law Journal

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Heightened Independence and Progress Inc. v. The Port Authority of New York and New Jersey, No. 11-3673; Third Circuit; opinion by Hardiman, U.S.C.J.; filed September 11, 2012. Before Judges Rendell, Fuentes and Hardiman. On appeal from the District of New Jersey. [Sat below: Judge Chesler.] DDS No. 46-8-7672 [24 pp.]

The Port Authority of New York and New Jersey appeals from the district court's summary judgment, which orders the authority to make modifications to its Grove Street Station in Jersey City to bring it into compliance with the Americans with Disabilities Act (ADA) of 1990. In a cross-appeal, plaintiffs Heightened Independence and Progress Inc. (hip), the United Spinal Association and Peter Gimbel appeal the order dismissing their state-law claims on the basis that allowing such claims would violate the interstate compact that created the authority.

The authority's wholly owned subsidiary, the Port Authority Trans-Hudson Corporation (PATH), operates the Grove Street Station, which has three levels, street, mezzanine, and platform, and two street-level entrance sides — east and west. The station was built in 1910. In the 1970s, PATH closed the east entrance and constructed two entrances on the west side. In 2000, PATH planned to expand the station to accommodate 10-car trains and persons with disabilities, a project that would have involved the construction of a new entrance and two elevators on the west side. After Sept. 11, 2001, and the closure of Exchange Place in New Jersey and the World Trade Center in Manhattan, ridership increased at the Grove Street Station. Citing concerns about congestion and safety, PATH undertook a different "fast track" project to reopen the east entrance.

Construction began in 2002 and concluded in 2005. The project involved building a new street-level pavilion and renovating the connections between the street and mezzanine levels on the east side. The pavilion was built four inches above the sidewalk to comply with flood-plain construction requirements, and stairs were installed to connect the sidewalk and the building. In 2006, after PATH finished construction, its engineering department concluded that elevator installation was feasible only on the west side of the station. The east-side platform would be too crowded, and construction on the east side would result in service disruption and possible flooding.

Plaintiffs' complaint alleges that the Grove Street Station renovations triggered an obligation under the ADA to make the station accessible to handicapped persons. It also alleges violations under New Jersey's Law Against Discrimination and New Jersey construction code provisions.

During discovery, five schemes for making the east entrance ADA-compliant were evaluated by the authority's engineering department. The court held that Schemes 4 and 5, which propose installation of a mezzanine-to-platform limited-use, limited-access (LULA) elevator — are feasible. Consequently, entering summary judgment for plaintiffs, the court ordered the authority to make the east entrance accessible.

Held: The district court's order requiring the Port Authority of New York and New Jersey to make modifications to its Grove Street Station to bring it into compliance with the ADA is vacated.

The ADA is codified in numerous statutes in the U.S. Code. Regulations have been promulgated by the Department of Transportation to implement those statutes. And pursuant to 42 U.S.C. § 12204, the Architectural and Transportation Barriers Compliance Board has issued ADA accessibility guidelines (ADAAG). The Department of Justice produces an ADA "technical assistance manual," which provides further guidance. The litigants dispute the interpretation of several of these provisions as applied to the Grove Street Station construction project.

As a preliminary matter, the regulations and the ADAAG impose different obligations on different kinds of construction projects. "New facility" construction is distinguished from the "alteration" of existing facilities. There is another category, "addition," although the ADAAG treats additions largely as alterations. Because the obligations of the builder under each category are different, a construction project must be classified as one or the other. Here, the circuit panel agrees with the district court's characterization of the construction project as an alteration.

The touchstone of this appeal is the authority's obligation — triggered because it altered the station — to make the station accessible "to the maximum extent feasible." This requirement appears in 42 U.S.C. § 12147(a) and 49 C.F.R. § 37.43(a)(1), as well as in the "technical infeasibility" guideline, ADAAG § 4.1.6(1)(j).

The parties present numerous arguments as to whether it was feasible to make the Grove Street Station ADA-accessible as part of the project by installing an elevator to the platform level. There are three triable issues of fact related to the feasibility of Schemes 4 and 5: the acquisition of subterranean property rights through an easement or sale from Jersey City; the technical infeasibility of making Grove Street Station ADA-accessible — in particular, whether either requires removing or altering a load-bearing member; and the compliance (and necessity of compliance) of those schemes with the fire safety standards in NFPA 130.

Questions of the feasibility of the proposed ADA-compliant modification are directed toward whether it would have been feasible between 2002 and 2005, when the construction took place. The district court did not address this question; accordingly, the circuit panel will remand for consideration of "feasibility" anew, as of the time of construction.

As to plaintiffs' cross-appeal, the circuit panel affirms the dismissal of plaintiffs' state law claims because the authority's interstate compact does provide for the application of state law to the authority.

The circuit panel vacates the summary judgment of the district court, affirms the dismissal of the state law claims and remands for further proceedings.

For appellees/cross-appellants — David J. Popiel (Community Health Law Project) and Michael H. Isaac and Robert B. Stulberg (Broach & Stulberg). For appellant/cross-appellee — Frank C. Morris Jr. and David W. Garland (Epstein, Becker & Green); George P. Cook, Jason T. Watson and Megan Lee (Port Authority of New York and New Jersey).

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