Self-Storage and the ADAAccessibility for the disabled under the Americans with Disabilities Act

Self-Storage and the ADA

Accessibility for the disabled under the Americans with Disabilities Act

By Scott Zucker

Title III of theAmericans with Disabilities Act (ADA) of 1990 prohibits private entities fromdiscriminating against individuals with disabilities by maintaining places of businessthat are not physically accessible. The act requires that places of public accommodationremove architectural barriers that limit access to or use of the public place.

The term "public accommodation" in the ADA generally encompasses all privatebusinesses that offer goods and services to the public. Existing buildings, alterationsand new construction are all within the scope of the ADA's public-accommodationprovisions. As such, under the law, existing buildings were required to remove physicalbarriers to entering and using the buildings, and alterations to buildings were requiredto be "readily accessible to and usable by" people with disabilities to the"maximum extent feasible." All new construction of commercial facilities must bein compliance with the ADA and must be readily accessible to and usable by individualswith disabilities. The accessibility obligations for new construction are greater thanthose applicable to alterations of existing facilities.

Following the enactment of the Americans with Disabilities Act in 1990, and to affectthe act's prohibition against discrimination based upon disability, an agency was createdby the federal government to oversee the design, construction and alteration of buildingsand facilities covered by the ADA, and to develop implementing regulations. This agency isthe U.S. Architectural and Transportation Barriers Compliance Board (U.S. Access Board)and has regulatory authority to issue its "Americans with Disabilities ActAccessibility Guidelines" (ADAAG), which provides the technical requirements forcompliance with the ADA.

The first versions of the ADAAG did not address self-storage facilities at all. In1996, the ADAAG Review Advisory Committee issued a "recommendation" report tothe U.S. Access Board which included a "scoping" provision related toself-storage construction. This type of scoping provision, which, in this case, set aminimum number of spaces in facilities to be accessible for disabled individuals, hadpreviously been used with other businesses, such as hotels, and had set a requirement forthe number of rooms which were to be fully accessible. Section 225 of the 1996 ADAAGrecommendations called for "scoping" of accessible self storage units asfollows:

The proposed rule went on to state that "Accessible, individual, self-servicestorage spaces shall be dispersed throughout the various classes of spaces provided. Wheremore classes of spaces are provided than the number of required accessible spaces, thenumber of accessible spaces shall not be required to exceed that required by (therecommendation). Accessible spaces shall be permitted to be dispersed in a single buildingof a multibuilding facility." This recommendation concerning self-storage was neverincluded in the updated ADAAG; however, it has never been rejected. The recommendationremains simply in limbo within the federal rulemaking process.

Certainly, the construction of certain aspects of a self-storage facility are clearlyexplained in the ADAAG. For example, the requirements for offices built for self-storagefacilities, just like any office area, can be found within the ADA regulations. Suchoffices must meet the requirements for public accommodations and be fully accessible tothe disabled through the use of ramped walkways and appropriate sized doors. Similarly,access into self-storage buildings themselves can be provided through the use of certaindoors and by using expanded hallway widths. Many of these issues are easily tackled, sincethere is a need in self-storage facilities to allow for easy access for customers who aremoving their property with dollies or carts. For the same reason, the requirement forelevators in certain buildings under the ADA not only assists disabled patrons, but is anecessity for customers moving property in multistory facilities.

It is the issue of access into the storage units themselves that remains the mostconfusing aspect of facility construction under the ADA. Without clarity on this issue,architects are left with little guidance as to the appropriate percentage of facilityunits, if any, which must be built for disabled access in new facilities and how thoseunits are to be built.

For example, where in common self-storage construction a slope is built into thegrading to allow for water run off away from a building, the ADAAG rules would appear torequire that there be no ramp or slope at least 5 feet from each unit door or publicentrance. If that is the case, there would be no ability for designers to create thenecessary grading slope away from the building. Additionally, where most concrete pads infacility construction include a small lip or curb in the doorway as another method torestrict water infiltration into storage spaces, this lip would also be in violation ofthe ADA, which does not allow for any obstacles to access.

It is interesting to note that, although the guidelines seem to create certainrestrictions for self-storage development, as a practical matter there remains thequestion whether the ADAAG can be applied to self-storage at all. For example,"loading entrances" are not included within the definition of "publicentrances" under ADAAG and, whereas the ADAAG does discuss doors, there is nodiscussion whatsoever about the type of roll-up doors typically used in self-storagefacilities.

The lack of specific information on an issue, such as what doors must be used forself-storage spaces can be used by owners and architects to argue that they do not have tomeet the general criteria for doors mentioned in ADAAG. On the other hand, this lack ofinformation can also lead to interpretations that suggest special doors must be used,since standard roll-up doors may be considered too heavy to lift. Without clarity on thesepoints, there will only be continued controversy and confusion between architects andlocal code officials.

City planners eager to follow the ADA rules have been forced to impose their owninterpretations of the ADA and have, in certain circumstances, over applied the rules soas to avoid the risk of claims from disabled patrons or from the Department of Justice,which enforces the ADA. Some local officials have sought 100 percent accessibilitycompliance for self-storage units. However, the practical application of suchinterpretations is devastating to self-storage developers who look at the costs of usingspecial types of doors or even electric door openers for each of their units rather thenconventional roll-up doors. Such alternatives, outside the mainstream of typical designfor self-storage facilities, can substantially raise construction costs.

The ADA is not a building code, and Title III of the Act does not have any directeffect on state and local building codes. The ADA allows the U.S. Attorney General tocertify that a state law, local building code or similar ordinance that establishesaccessibility requirements meets or exceeds the minimum accessibility requirements forpublic accommodations in commercial facilities. Because the ADA is a Civil Rights law, afew states have adopted ADAAG as their accessibility code and implemented its provisionsthrough state and local building officials. However, ADAAG compliance does not relievearchitects from complying with local access codes. Where such local codes contain morestringent requirements, they must be followed.

Obviously, the rules governing public access for the disabled are important forcommercial businesses to follow. However, the lack of specific direction for somebusinesses, such as with self-storage, can result in costly delays and overall confusionfor all parties involved in the design and construction process. Until the federal lawidentifies specific requirements for self-storage facilities, project owners, theirarchitects and city planners need to work together to match the need for appropriateaccess for disabled patrons without making the cost of construction unworkable forfacility owners and creating requirements that change the business of self-servicestorage.

Scott I. Zucker is a partner in the law firm of Weissmann & Zucker, P.C. Mr.Zucker is an expert in the field of self-storage law and represents self-storage ownersand managers throughout the country in matters that include contracting for construction,preparing lease agreements, defending tenant claims and handling employment disputes. Hecan be reached at (404) 364-4626 or by e-mail at [email protected].