DSA IR 11B-10: SCOPING AND PATH OF TRAVEL UPGRADE REQUIREMENTS FOR FACILITY ALTERATION, ADDITION AND STRUCTURAL REPAIR PROJECTS (with revisions issued through April 2017)

3. DISPROPORTINATE [sic] COST LIMITATIONS

3.1 Disproportionate Costs for Small Projects: Section 11B-202.4, Exception 8 addresses the issue of disproportionate costs for smaller projects and for projects where full compliance would be an unreasonable hardship.

• "When the adjusted construction cost is less than or equal to the current valuation threshold, as defined in Chapter 2, Section 202, the cost of compliance with Section 11B-202.4 shall be limited to 20 percent of the adjusted construction cost of alterations, structural repairs or additions. When the cost of full compliance with Section 11B-202.4 would exceed 20 percent, compliance shall be provided to the greatest extent possible without exceeding 20 percent."

• Alteration, addition and structural repair projects with adjusted construction costs below the valuation threshold shall be permitted to use the disproportionate cost threshold of 20 percent to limit the scope and cost of path of travel upgrades.

3.2 Projects with Adjusted Construction Costs Above the Valuation Threshold: The 20-percent disproportionate cost limitation does not apply to projects with adjusted construction costs above the valuation threshold. These projects must comply with the path of travel upgrade requirements, whatever the cost, to provide a single accessible path of travel to the specific area of alteration. However, Section 11B-202.4 Exception 8 provides:

• "When the adjusted construction cost exceeds the current valuation threshold, as defined in Chapter 2, Section 202, and the enforcing agency determines the cost of compliance with Section 11B-202.4 is an unreasonable hardship, as defined in Chapter 2, Section 202, full compliance with Section 11B-202.4 shall not be required."

• A finding of UNREASONABLE HARDSHIP may be made when the enforcing agency (DSA) finds that compliance with the building standard would make the specific work of the project affected by the building standard infeasible, based on an overall evaluation of the following factors:

1. The cost of providing access.

2. The cost of all construction contemplated.

3. The impact of proposed improvements on financial feasibility of the project.

4. The nature of the accessibility which would be gained or lost.

5. The nature of the use of the facility under construction and its availability to persons with disabilities.

• "Compliance shall be provided by equivalent facilitation or to the greatest extent possible without creating an unreasonable hardship; but in no case shall the cost of compliance be less than 20 percent of the adjusted construction cost of alterations, structural repairs or additions."⁵

• "The details of the finding of unreasonable hardship shall be recorded and entered into the files of the enforcing agency and shall be subject to Chapter 1, Section 1.9.1.5, Special Conditions for Persons with Disabilities Requiring Appeals Action Ratification."

• The adjusted construction cost shall not include the cost of alterations to path of travel elements.

⁵ As long as there are noncompliant elements that need to be corrected, the cost of the path of travel upgrades cannot fall below 20 percent, as that is a requirement of the both the 2013 CBC and the 2010 ADA Standards.

3.3 Finding of Unreasonable Hardship: A finding of unreasonable hardship is appropriate only when the cost of full compliance is significantly above the 20-percent disproportionate cost limitation and would make the project financially infeasible. A finding of unreasonable hardship may be made by the enforcing agency and should be based upon a detailed project-specific analysis. For projects within DSA’s jurisdiction, a finding of unreasonable hardship must be approved by the access supervisor and the regional manager.

3.4 Three Year History: For areas that have been previously altered without providing an accessible path of travel to those areas, the cost of any subsequent alterations to areas served by the same path of travel during a preceding three-year period shall be considered in determining whether the cost of making the path of travel is disproportionate.

3.5 Upgrades in Substantially Compliant Facilities: For projects where the path of travel elements serving the area of alteration, addition or structural repair are largely compliant, it shall not be required that the full 20 percent of the adjusted construction cost be spent.