LEGAL OPINION - U.S. DEPARTMENT OF TRANSPORTATION OFFICE of GENERAL COUNSEL on 49 CFR 37.43(a)

(B) Staircase replacements are alterations that affect or could affect the usability of a public transportation facility or part thereof.

NYCT, in its comments to the docket for FTA’s proposed ADA circular, asserted that an alteration to an existing facility must be done “in a way that affects or could affect the usability of the facility” in order to trigger the accessibility requirements under the ADA and 49 CFR § 37.43. However, in Disabled in Action of Pa. v. Se. Pa. Transp. Auth. (hereinafter “SEPTA I”), 655 F. Supp. 2d 553, 562 (E.D. Pa. 2009), aff’d, SEPTA II, 635 F.3d 87, 93–94 (3d Cir. 2011), the staircase at issue was replaced due to deterioration of the concrete, and the court noted that the original stairway and the replacement stairway brought an ambulatory person from street level to the same point within the station courtyard. SEPTA I, 655 F. Supp. 2d at 557. The Federal District Court, later affirmed by the Third Circuit, found it “inescapable as a conclusion that replacing a stairway that is unsafe and an escalator that is inoperable with a safe stairway and an operating escalator unequivocally enhances the usability of the stairway and escalator portions of the SEPTA facilities.” SEPTA I, 655 F. Supp. 2d at 562 (emphasis added).

NYCT argues that the “usability” determination in SEPTA II hinges on the fact that the Third Circuit considered the staircase to be “unusable” when it was replaced (or, in NYCT’s words, “no longer usable” and “non-functional”). See SEPTA II, 635 F.3d at 90, 93 (describing the staircase as having become “unusable”); but see SEPTA I, 655 F. Supp. 2d at 557, 562 (deciding that a staircase replacement affected “usability” without describing the original staircase as being “unusable,” but rather “unsafe” or “in disrepair”). While the court in SEPTA II found that the staircase was unusable because it was no longer safe or operable, these are not the only circumstances that meet the “usability” standard. For example, the Third Circuit in Kinney held that resurfacing street pavement affects the street’s “usability” because it makes streets “easier and safer” to use. Kinney v. Yerusalim, 9 F.3d 1067, 1073–74 (3d Cir. 1993) (citing the District Court opinion). “When that surface is improved, the street becomes more usable in a fundamental way.” Id. at 1074. Neither the District Court nor the Third Circuit indicated that the street was unsafe when it was resurfaced. Rather, the Third Circuit’s holding rested solely on the fact that resurfacing the street made the street “easier and safer” for pedestrians and vehicles to use. Id. at 1073–74. The Third Circuit, citing the legislative history of the ADA, underscored that the term “usability” should be broadly defined and has an expansive, remedial construction. Id. at 1073 (citing H. Rep. No. 485, 101st Cong., 2d Sess., Pt. 3, at 64 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 487). By asserting that an altered portion of a facility must be “no longer usable” or “nonfunctional” (in NYCT’s words), or not “in-use” (in SEPTA’s words), in order to qualify as an alteration that “affects or could affect the usability of a facility or part of the facility,” NYCT and SEPTA attempt to add a substantive element that does not exist in 42 U.S.C. § 12147(a) or 49 CFR § 37.43(a); indeed, adding such an element would be inconsistent with Third Circuit case law. See Kinney, 9 F.3d at 1073–74. 

In conclusion, a staircase replacement at an existing facility would qualify as an alteration, given DOT’s examples of alterations under 49 CFR § 37.3 (e.g., “remodeling, renovation, rehabilitation, reconstruction,” etc.), and Third Circuit case law that held that a staircase replacement is in fact an alteration for purposes of the ADA. SEPTA II, 635 F.3d at 93–94. Moreover, where the staircase is replaced due to concrete deterioration or to make the staircase easier or safer to use, such a staircase replacement would qualify as an alteration that “affects or could affect the usability of the facility or part of the facility” under federal appellate case law, regardless of whether the staircase was “in use” at that time. See Kinney, 9 F.3d at 1073–74; SEPTA I, 655 F. Supp. 2d at 562, aff’d, SEPTA II, 635 F.3d at 93–94; see also 42 U.S.C. § 12147(a); 49 CFR § 37.43(a)(1).