By Scott Zucker
Title III of the Americans with Disabilities Act (ADA) of 1990 prohibits private entities from discriminating against individuals with disabilities by maintaining places of business that are not physically accessible. The act requires that places of public accommodation remove architectural barriers that limit access to or use of the public place.
The term "public accommodation" in the ADA generally encompasses all private businesses that offer goods and services to the public. Existing buildings, alterations and new construction are all within the scope of the ADA's public-accommodation provisions. As such, under the law, existing buildings were required to remove physical barriers to entering and using the buildings, and alterations to buildings were required to be "readily accessible to and usable by" people with disabilities to the "maximum extent feasible." All new construction of commercial facilities must be in compliance with the ADA and must be readily accessible to and usable by individuals with disabilities. The accessibility obligations for new construction are greater than those applicable to alterations of existing facilities.
Following the enactment of the Americans with Disabilities Act in 1990, and to affect the act's prohibition against discrimination based upon disability, an agency was created by the federal government to oversee the design, construction and alteration of buildings and facilities covered by the ADA, and to develop implementing regulations. This agency is the U.S. Architectural and Transportation Barriers Compliance Board (U.S. Access Board) and has regulatory authority to issue its "Americans with Disabilities Act Accessibility Guidelines" (ADAAG), which provides the technical requirements for compliance with the ADA.
The first versions of the ADAAG did not address self-storage facilities at all. In 1996, the ADAAG Review Advisory Committee issued a "recommendation" report to the U.S. Access Board which included a "scoping" provision related to self-storage construction. This type of scoping provision, which, in this case, set a minimum number of spaces in facilities to be accessible for disabled individuals, had previously been used with other businesses, such as hotels, and had set a requirement for the number of rooms which were to be fully accessible. Section 225 of the 1996 ADAAG recommendations called for "scoping" of accessible self storage units as follows:
The proposed rule went on to state that "Accessible, individual, self-service storage spaces shall be dispersed throughout the various classes of spaces provided. Where more classes of spaces are provided than the number of required accessible spaces, the number of accessible spaces shall not be required to exceed that required by (the recommendation). Accessible spaces shall be permitted to be dispersed in a single building of a multibuilding facility." This recommendation concerning self-storage was never included in the updated ADAAG; however, it has never been rejected. The recommendation remains simply in limbo within the federal rulemaking process.
Certainly, the construction of certain aspects of a self-storage facility are clearly explained in the ADAAG. For example, the requirements for offices built for self-storage facilities, just like any office area, can be found within the ADA regulations. Such offices must meet the requirements for public accommodations and be fully accessible to the 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 certain doors and by using expanded hallway widths. Many of these issues are easily tackled, since there is a need in self-storage facilities to allow for easy access for customers who are moving their property with dollies or carts. For the same reason, the requirement for elevators in certain buildings under the ADA not only assists disabled patrons, but is a necessity for customers moving property in multistory facilities.
It is the issue of access into the storage units themselves that remains the most confusing aspect of facility construction under the ADA. Without clarity on this issue, architects are left with little guidance as to the appropriate percentage of facility units, if any, which must be built for disabled access in new facilities and how those units are to be built.
For example, where in common self-storage construction a slope is built into the grading to allow for water run off away from a building, the ADAAG rules would appear to require that there be no ramp or slope at least 5 feet from each unit door or public entrance. If that is the case, there would be no ability for designers to create the necessary grading slope away from the building. Additionally, where most concrete pads in facility construction include a small lip or curb in the doorway as another method to restrict water infiltration into storage spaces, this lip would also be in violation of the ADA, which does not allow for any obstacles to access.
It is interesting to note that, although the guidelines seem to create certain restrictions for self-storage development, as a practical matter there remains the question whether the ADAAG can be applied to self-storage at all. For example, "loading entrances" are not included within the definition of "public entrances" under ADAAG and, whereas the ADAAG does discuss doors, there is no discussion whatsoever about the type of roll-up doors typically used in self-storage facilities.
The lack of specific information on an issue, such as what doors must be used for self-storage spaces can be used by owners and architects to argue that they do not have to meet the general criteria for doors mentioned in ADAAG. On the other hand, this lack of information 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 these points, there will only be continued controversy and confusion between architects and local code officials.
City planners eager to follow the ADA rules have been forced to impose their own interpretations of the ADA and have, in certain circumstances, over applied the rules so as 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 accessibility compliance for self-storage units. However, the practical application of such interpretations is devastating to self-storage developers who look at the costs of using special types of doors or even electric door openers for each of their units rather then conventional roll-up doors. Such alternatives, outside the mainstream of typical design for 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 direct effect on state and local building codes. The ADA allows the U.S. Attorney General to certify that a state law, local building code or similar ordinance that establishes accessibility requirements meets or exceeds the minimum accessibility requirements for public accommodations in commercial facilities. Because the ADA is a Civil Rights law, a few states have adopted ADAAG as their accessibility code and implemented its provisions through state and local building officials. However, ADAAG compliance does not relieve architects from complying with local access codes. Where such local codes contain more stringent requirements, they must be followed.
|Total Spaces in Facility||Minimum Number of Required Accessible Spaces|
|One to 200||5 percent, but not less than one|
|201 and over||10, plus 2 percent of total number of units over 200|
Obviously, the rules governing public access for the disabled are important for commercial businesses to follow. However, the lack of specific direction for some businesses, such as with self-storage, can result in costly delays and overall confusion for all parties involved in the design and construction process. Until the federal law identifies specific requirements for self-storage facilities, project owners, their architects and city planners need to work together to match the need for appropriate access for disabled patrons without making the cost of construction unworkable for facility owners and creating requirements that change the business of self-service storage.
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 owners and managers throughout the country in matters that include contracting for construction, preparing lease agreements, defending tenant claims and handling employment disputes. He can be reached at (404) 364-4626 or by e-mail at Zucklaw@AOL.com.