By Kelsea Neal Nolot

Under a series of recent U.S. District Court cases and new administrative rulemaking, many sidewalks, crosswalks, and other pedestrian facilities may be deemed insufficiently accessible to pedestrians with disabilities to the extent required by the Americans with Disabilities Act (“ADA“) and the Rehabilitation Act of 1973 (“Rehabilitation Act“). While new federal rules are not yet in effect, Illinois local governments should be aware of these developments as the required response may compel a significant makeover of pedestrian grids.

Recent Court Decisions

Title II of the ADA and the Rehabilitation Act generally protect individuals with disabilities from discrimination. This protection specifically includes a requirement that municipalities provide meaningful access to the pedestrian grid for visually impaired pedestrians; failure to do so may amount to an impermissible exclusion of disabled individuals from a government program. §28 C.F.R. 35.151(b)(1).

In 2020, the American Council for the Blind of New York, an organization that advocates for individuals with vision disabilities, brought a class action lawsuit against the City of New York for failing to provide non-visual crossing information at pedestrian crosswalks. American Council of Blind of New York, Inc. v. City of New York, 495 F.Supp.3d 211 (2020). The United States District Court for the Southern District of New York ruled in favor of the advocacy group, determining that New York City failed to provide adequate and meaningful access to the pedestrian grid in violation of the ADA and the Rehabilitation Act. The Court also specifically found that the City’s failure to install Accessible Pedestrian Signals on newly constructed pedestrian signals violated Department of Justice accessibility regulations. Id., §28 C.F.R. 35.151(b)(1). In a later ruling, the Court issued a compliance mandate to the City, requiring it to retrofit at least 70 percent of its signalized crosswalks before 2031 to be accessible to individuals with visual impairments. American Council for the Blind of New York, 579 F.Supp.3d 539, 474-475 (2021).

In a similar decision in 2022, the U.S. District Court for the Northern District of Illinois in Chicago found that the City of Chicago violated the ADA and Rehabilitation Act regarding pedestrian grid access. American Council for the Blind Metropolitan Chicago v. City of Chicago, 2023 WL 2744596. The plaintiff in that case, recently indicated in its podcast that it has engaged with the City of Chicago to negotiate remedial measures without a court order, if possible, and seeks a remedy equal to or greater than the New York consent agreement.

New Accessibility Guidelines

In August 2023, the U.S. Access Board, the federal agency tasked with promoting equality for people with disabilities and developing accessible design standards, addressed these same issues by promulgating new rules on accessibility guidelines for pedestrian facilities in public rights-of-way (“PROWAG“). PROWAG identifies and requires implementation of minimum scoping and technical requirements for various elements in the public rights-of-way, including pedestrian access routes, and specifically outlines minimum requirements for accessible pedestrian signals, curbs, ramps, warning surfaces, crosswalks, roundabouts, transit stops, off-street parking, street furniture, and temporary pedestrian access routes when construction is in the public right-of-way. §36 C.F.R. 1190.

Most significantly, PROWAG requires that any newly constructed or altered pedestrian signals installed at crosswalks include “accessible pedestrian signals” (“APS“). APS is a device that communicates “walk” and “don’t walk” signals to pedestrians in a non-visual format through audible tones, speech messages, and vibrating surfaces. American Council of Blind of New York, Inc. v. City of New York, 495 F.Supp.3d at 222. The U.S. Access Board has acknowledged that the universal installation of APS is the most costly provision of PROWAG. Nevertheless, it determined that APS is the most meaningful mode for increasing independent movement for individuals who are blind or have low vision. 88 FR 53604.

The U.S. Access Board finalized the PROWAG rulemaking on September 7, 2023, and is responsible for enforcing the Architectural Barriers Act, which requires any facility built or leased using federal dollars or leased by federal agencies to comply with U.S. Access Board minimum accessibility guidelines. 42 U.S.C. 4151. The Department of Justice (“DOJ“) and Department of Transportation (“DOT“) are required to adopt, in whole or in part, the U.S. Access Board’s minimum accessibility guidelines, including PROWAG, under Title II of the ADA and the Rehabilitation Act and ensure that local government programs and facilities are broadly accessible to the public. 42 U.S.C. 12101; 29 U.S.C. 794. The DOJ has indicated that it intends to issue a Notice of Proposed Rulemaking to adopt PROWAG in 2024. Local governments should be aware that PROWAG minimum standards will be adopted and enforceable against local governments once adopted by the DOJ or DOT, likely later this year.

It’s important that local governments preparing capital project plans consider incorporating new PROWAG standards, including:

  • All new and altered pedestrian signal heads installed at crosswalks must include “accessible pedestrian signals,” with audible and vibrotactile features indicating the walk interval. §28 C.F.R. 35.151(b)(1). §36 C.F.R. 1190.
  • An “alteration” under PROWAG refers to any project in which the right-of-way facility is changed or a project that adds a pedestrian facility in an existing public right-of-way that affects or could affect pedestrian access, circulation, or usability. R104.3, R201.1; R202. This includes, without limitation, resurfacing, rehabilitation, reconstruction, historic restoration, or changes or rearrangement of structural parts or elements of a facility, regardless of the project’s intended scope. Id. Alterations must comply with PROWAG standards to the extent that existing physical constraints make compliance technically infeasible. Id.
  • Newly constructed right-of-way facilities require complete PROWAG compliance, including APS. R104.3.
  • All new and altered facilities must connect to an existing pedestrian circulation path to ensure that all individuals with disabilities can benefit from the alteration. R202.2.
  • All operations and functions of local, state, and federal government are subject to the APS and, thus, must comply with minimum PROWAG standards once adopted by the DOJ or DOT. 42 U.S.C.A. § 12132.
  • The Southern District of New York determined that APS devices are the only facility sufficient for aiding pedestrians with visual impairments. Exclusive pedestrian phase traffic signals and leading pedestrian interval systems are insufficient in assisting visually impaired pedestrians because they cause more confusion and mislead and endanger those with visual impairments.
  • The Southern District of New York Court also ruled that the accessibility of a pedestrian grid is determined by its accessibility and usability when viewed in its entirety, not by the individual path of a pedestrian.
  • The Northern District of Illinois added that a municipality may not wait for an individual to request accessibility modifications before implementing a pedestrian grid accessible to those with visual impairments.

We will continue to track the evolution of these lawsuits and regulatory guidance to determine the effect on local governments. Meanwhile, please contact Kelsea Neal Nolot or any Elrod Friedman attorney with any questions.