AMERICANS WITH DISABILITIES ACT TITLE II PROCESS FOR DOCUMENTING TECHNICAL INFEASIBILITY AND HISTORICAL SIGNIFICANCE EXCEPTIONS
Administrative Rule Adopted by Office of Equity and Human Rights Pursuant to Rule-Making Authority
The City of Portland must comply with Title II of the Americans with Disabilities Act (ADA). The ADA allows governmental entities to make exceptions to full and strict compliance with the requirements to alter existing buildings or facilities for accessibility. This administrative rule establishes the responsibilities and processes in the City of Portland for documenting and approving the exceptions to the ADA requirements in such alterations.
The exceptions described in this administrative rule include technical infeasibility and historical significance.
The City project bureau that identifies the need for an exception to full and strict compliance with ADA requirements to remove barriers shall provide documentation to the ADA Title II program manager in the Office of Equity and Human Rights (OEHR) that describes:
1. The rationale for requesting an exception for the identified element(s) or feature(s) in the alteration on the grounds of technical infeasibility or historical significance.
2. The efforts the bureau has made to achieve ADA compliance on the project to the maximum extent feasible. This could include steps the bureau has taken beyond the minimum legal requirements to offset potential accessibility limitations posed by the element or feature including accessible programmatic alternatives and/or equivalent facilitation.
The ADA Title II program manager may:
• Request additional documentation or supporting information;
• Recommend alternatives that could better meet ADA Title II requirements;
• Request a meeting to discuss;
• Determine the documentation is insufficient; or
• Concur with request for exception with or without comments.
Criteria and Documentation:
An exception to design compliance may be approved for an identified element or feature in an existing building or facility on the basis that the alteration has little likelihood of being accomplished because of one or more of the following criteria.
- The existing structural conditions would require removing or altering a load bearing member that is an essential part of the structural frame.
- Other existing physical or site constraints prohibit modifications that are in full compliance with the minimum requirements.
- Other existing physical or site constraints prohibit the addition of features, elements, or space that are in full compliance with the minimum requirements.
Supporting documentation should identify steps taken or proposed to be taken that would ensure that compliance with ADA was or can be accomplished to the maximum extent feasible.
For a qualified historic site, building or facility, City bureaus may identify an exception for an identified element or feature if compliance with the ADA would threaten or destroy the historic significance of the building or facility.
For purposes of this administrative rule, a qualified historic building or facility is defined as a building or facility that meets one or more of the following criteria.
- Listed on the National Register of Historic Places or as a contributing structure in a National Register Historic District;
- Certified as historic property by the State Historic Preservation Officer pursuant to ORS Chapter 358; or,
- Designated as a local or Portland historic landmark under Portland City Code Title 33 or as a contributing structure in a locally designated Conservation District.
As part of its documentation requesting an exception under historical significance, the City bureau should include documentation of the building’s or site’s historic designation and historically significant features, and documentation regarding how the alteration would threaten, diminish or destroy the historically significant features and/or elements described in the historic listing, historic designation, or in a City, State, or Federal historic properties inventory.
Supporting documentation should identify steps taken or proposed to be taken that would ensure that compliance with ADA was or can be accomplished to the maximum extent feasible without threatening or destroying the historic significance of the building or facility.
Final decision maker(s), ADA Title II program manager and project bureau must jointly ensure that an alteration provides the level of accessibility to the maximum extent feasible and the City’s noncompliance with ADA design standards fully and strictly is a reasoned decision that is supported with adequate documentation.
City project bureaus are responsible for providing timely, accurate and complete documentation for request for exceptions.
The ADA Title II program manager is responsible for reviewing the requests and accompanying documentation, and providing the City decision-maker with an assessment on the sufficiency of the exceptions request.
Unless otherwise directed by the Commissioner-in-Charge, the Bureau Director is responsible for final review and approval of any requests for exceptions. Approval authority may be delegated to senior level supervisor in writing.
Consultation with the City Attorney’s Office and/or technical experts in ADA accessibility design is encouraged during all steps of the request process.
The final approval shall be maintained in the project file with copy provided to ADA Title II program manager.
Adopted by the Director of the Office of Equity and Human Rights May 20, 2015.
Filed for inclusion in PPD June 8, 2015.