“Resurfacing beyond normal maintenance is an alteration. Merely filling potholes is
considered to be normal maintenance.”
--DOJ Title II Technical Assistance Manual
In Kinney vs Yerusalim (812 F. Supp. 547 [F.D. PA, 1993]), a district court determined
that the resurfacing of public streets in the city of Philadelphia was an alteration that
affected the usability of the street and thus triggered the requirement for curb ramp
installation at intersections under the DOJ title II regulation.
“When streets, roads, or highways are newly built or altered, they must have ramps or
sloped areas wherever there are curbs or other barriers to entry from a sidewalk or path.
Likewise, when new sidewalks or paths are built or altered, they must contain curb ramps
or sloped areas wherever they intersect with streets, roads, or highways.”
--DOJ technical assistance letter
Appendix A to Part 35
[Preamble, including section-by-
section analysis]
§35.150 Existing facilities
...The concept of “program accessibility” was first used in the section 504 regulation
adopted by the Department of Health, Education, and Welfare for its federally assisted
programs and activities in 1977. It allowed recipients to make their federally assisted
programs and activities available to individuals with disabilities without extensive
retrofitting of their existing buildings and facilities, by offering those programs through
alternative methods. Program accessibility has proven to be a useful approach and was
adopted in the regulations issued for programs and activities conducted by Federal
Executive agencies. The [ADA] provides that the concept of program access will
continue to apply with respect to facilities now in existence, because the cost of
retrofitting existing facilities is often prohibitive.[...]
In choosing among methods, the public entity shall give priority consideration to those
that will be consistent with provision of services in the most integrated setting
appropriate to the needs of individuals with disabilities. Structural changes in facilities
are only required when there is no other feasible way to make the public entity’s program
accessible. (It should be noted that “structural changes” include all physical changes to a
facility...[...]
...[A] public entity should provide an adequate number of accessible parking spaces in
existing parking lots or garages over which it has jurisdiction.
“Installation of curb ramps to provide access