Transit Bus Stops: Ownership, Liability, and Access (2008)

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19 ties, franchisees, and maintenance contractors. In the case of agreements, issues arise concerning indemnifi- cation by public entities and of public entities. 1. Indemnification of Employees A state statute may require that the municipality in- demnify an employee who negligently injures someone while operating a municipally-owned vehicle in dis- charge of a statutory duty and within the scope of em- ployment. However, some states require that in order for such indemnification to apply to the operation of a transit bus, the legislation authorizing the municipality to operate the bus must be mandatory and the exercise of authority must be in the municipality’s sovereign rather than proprietary capacity.196 2. Indemnification by Public Entities State sovereign immunity law may prohibit or re- strict a public entity from providing indemnification or purchasing liability insurance.197 Such limitations may cover only state entities, thus allowing municipalities to indemnify.198 3. Indemnification of Public Entities A New York court found that the actions of the tran- sit agency that created an unsafe condition on the side- walk did not give rise to common-law indemnification of the city, which bore the clear responsibility for main- taining the sidewalks. Moreover, the court noted that even statutory language requiring a contractor to in- demnify the city for any damage caused by negligent work performed by the contractor would not relieve the city of its own independent duty to maintain the side- walks.199 For contract language to provide indemnification, the language must be quite specific. The following was found to be sufficient to require a bus shelter vendor to indemnify the City of New York: “[Vendor] shall hold the City harmless from all damages to persons…by rea- son of the construction, operation or maintenance of the bus stop shelters hereby authorized, whether or not such damages are due to the negligence or otherwise of the City, its agents, servants or employees.”200 Very clear language is required to provide indemnifi- cation that permits an indemnitee to recover for its own negligence. The District of Columbia has held the fol- 196 Fiebinger v. New York, 182 Misc. 1007, 51 N.Y.S.2d 383 (N.Y. Sup. Ct. 1944). 197 See, e.g., Prohibited Contract Clauses, www.legal.uncc. edu/knockout.html; Explanation of Indemnification Limita- tions and Insurance Clauses, www.utsystem.edu/OGC/intellectualproperty/indins.htm; De- fense and Indemnity, www.wisc.edu/legal/defense.pdf. 198 E.g., Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp. 908 So. 2d 459 (Fla. 2005). 199 Petrucci v. City of N.Y., 167 A.D. 2d 29, 569 N.Y.S.2d 624 (1991). 200 Flynn v. Farias, 139 Misc. 2d 699, 528 N.Y.S.2d 486 (1988). lowing language to be sufficient: “The Subcontrac- tor…shall indemnify and save harmless the Contrac- tor…and Owner from any and all claims and liabilities for property damage and personal injury, including death, arising out of or resulting from or in connection with the execution of the work.”201 Public policy considerations may limit the application of indemnity clauses,202 and in the case of construction contracts203 or gross negligence204 such considerations may prohibit them altogether. Even where there is no basis for indemnification, there might be a basis for requiring contribution.205 III. OTHER LEGAL ISSUES A. Access to Enclosed Private Property to Provide Bus/Shuttle Service Substantial numbers of transit-dependent passengers can only gain access to privately owned facilities such as shopping centers, office parks, and medical centers via transit. In addition, in order to have meaningful access to such destinations, these transit-dependent passengers may also require transit access to privately owned facilities such as gated communities, retirement communities, and assisted-living communities. While many transit agencies have sufficient access to private property to provide this needed service to these transit- dependent passengers, other agencies have experienced difficulties in acquiring and/or maintaining access to such private property.206 In addition to reviewing the need for transit access to private property, this subsection includes examples of agencies that do have such access. The subsection also reviews examples of requirements for providing access and discusses possible liability to private property own- ers for denying access. 1. Need for Service Elderly passengers may be physically restricted in their ability to reach a regular bus stop, wait for a bus, 201 N.P.P. Contractors v. Canning & Co., 715 A.2d 139 (D.C. App. 1998). See also Schlosser v. Md. Drywall, 673 A.2d 647 (D.C. App. 1996). 202 George Coppolo. Indemnification Agreements–Validity in Other States. 2000-R-0514, Apr. 26, 2000, www.cga.ct.gov/2000/rpt/olr/htm/2000-R-0514.htm. 203 E.g,. RCW 4.24.115. Validity of agreement to indemnify against liability for negligence relative to construction, altera- tion, improvement, etc., of structure or improvement attached to real estate, http://apps.leg.wa.gov/RCW/default.aspcx?cite=4.24.115. 204 Nat’l R.R. Passenger Corp. v. Consol. Rail Corp., 698 F. Supp. 951 (D.D.C. 1988). 205 Petrucci, 167 A.D. 2d 29. 206 See HINEBAUGH ET AL., supra note 154. In addition, some transit agencies cannot serve enclosed private properties be- cause they do not provide service on private streets. Id.

20 or enter or exit a bus.207 However, not all of these pas- sengers are eligible for paratransit service.208 Such pas- sengers may be dependent on regularly scheduled tran- sit service and may need service that can access private property (e.g., shopping centers, retirement communi- ties, assisted living facilities, and medical facilities). The types of private property for which access may be required include gated communities, senior citizen communities, senior citizen facilities, and shopping cen- ters. For example, Sacramento Regional Transit runs a Neighborhood Ride shuttle route through the Phoenix Park gated community, which provides housing to low- income families and seniors,209 to the Florin Mall Tran- sit Center.210 In the case of paratransit, a passenger requesting a pick-up from a gated community may need to arrange before the scheduled pick-up for entry through security to secure the needed transportation.211 People with disabilities may be particularly depend- ent on transit, and so be at a particular disadvantage when retail, employment, and medical centers do not allow transit access.212 2. Examples of Agencies That Have Access Transit agencies seeking access to malls and other private property may find it useful to be aware of agen- cies that have such access. Selected examples of transit agencies with bus stops on private property follow. Metro Transit in Minneapolis has access to the Mall of America, which provides light rail access and bus connections.213 The mall describes bus service as one of its guest services: Passengers may access buses serving Minneapolis, St. Paul, and surrounding suburbs at the mall’s transit station at the east side of the mall.214 The Mall of America Transit Center is the largest transit center in the Minneapolis-St. Paul metropolitan area.215 207 David V. Lampman, Fun, Fun, Fun, ‘Til Sonny (or the Government) Takes the T-Bird Away: Elder Americans and the Privilege to be Independent, 12 ALB. L. J. SCI. & TECH. 863, 877 (2002). 208 National Council on Disability, supra note 3, at 91–92. 209 Phoenix Park Revitalization Project, described at www.shra.org/Content/CommunityDevelopment/PhoenixPark/ PhoenixParkTOC.htm. 210 SACOG Community Bus Service Planning Study Final Report, July 2004, Appendix B-2. Posted at www.sacog.org/publications/SACOG-04-021.pdf. 211 E.g., Access-a-Ride Users’ Guide, Regional Transporta- tion District, Denver. Posted at www.rtd- denver.com/SpecialRides/access-a-ride/userguide.pdf. 212 See NATIONAL COUNCIL ON DISABILITY, supra note 3, at 19-21. 213 Thomas R. Devaney, Public Transit and Shopping Cen- ters: Access or Denial?, SHOPPING CENTER LEGAL UPDATE, vol. 24, issue 3, Fall/Winter 2004, at 2. 214 www.mallofamerica.com/about_moa_guest_services. aspx. 215 A Better Light-Rail Connection to Mall of America; Good Transit Access is Good Business, www.metrocouncil.org/Directions/transit/transit2001- 03/moa.htm. The WMATA has access to several malls within its service area, including the Tysons Corners Shopping Center in Fairfax County.216 The Westshore Mall in Tampa, Florida, has provided patrons of Hillsborough Area Regional Transit the same level of access to the mall through its parking garage as it provides for people who park in the garage.217 The Central Florida Regional Transportation Author- ity (LYNX) will have access to the proposed Plaza Col- lina Shopping Center (a retail, office, and residential condominium development), with bus shelters provided and maintained by LYNX, and to Winter Garden Vil- lage (another mixed-use development), with bus shel- ters provided by the developer.218 Palm Tran in Palm Beach County, Florida, gained ac- cess to the Mall at Wellington Green as part of Palm Tran’s Access to Jobs program.219 3. Requirements and Strategies for Granting Access In St. Louis, Missouri, a local ordinance requires that bus access for the Bi-State Development Agency be identified before permits can be issued for new devel- opments, redevelopments, and expansions.220 The expenditure of public funds for maintenance may be grounds for requiring access. In Florida, for example, the Attorney General has determined that public access cannot be denied where local government participates in maintenance of private property.221 Moreover, zoning ordinances, land development regu- lations, and other local land use laws and regulations may require transit access.222 Florida law, for example, requires that any development with significant effect on more than one county be considered a Development of Regional Impact (DRI) that must be reviewed by re- gional planning councils. Transit agencies are involved early on in the review process, and the process often results in transit access requirements in exchange for development approval.223 Pasadena, California, requires that major nonresidential developments provide facili- ties for alternative modes of transportation.224 The 1998 Comprehensive Plan for the City of Port Orange, Flor- ida required that: “Major trip generators and attractors, 216 www.shoptysons.com/directions.asp. 217 Sara J. Hendricks, Cecilia Dyhouse, Land Developer Par- ticipation in Providing for Bus Transit Facilities and Opera- tions, CENTER FOR URBAN TRANSPORTATION RESEARCH, March 2002, at 12, www.dot.state.fl.us/research cen- ter/Completed_Proj/Summary_PTO/FDOT_BC137_19_rpt.pdf. 218 MARY KAY CHRISTOPHER, BUS TRANSIT SERVICE IN LAND DEVELOPMENT PLANNING 18 (TCRP Synthesis 67, 2006). 219 Palm Beach County Transportation Agency Transit De- velopment Plan Annual Update FY 2001–2002, at 25, www.co.palmbeachfl.us/palmtran/marketing/pdf/library/tdpfin al2002.pdf. 220 HINEBAUGH ET AL., supra note 154, at 14. 221 DEVANEY, supra note 213, at 3, citing (AGO 92-42). 222 HINEBAUGH ET AL., supra note 154. 223 CHRISTOPHER, supra note 218, at 16–6. 224 Hendricks et al, supra note 217, at 60.

21 including new commercial developments exceeding 50,000 square feet in gross leasable space and new resi- dential developments of more than 200 dwelling units, shall provide on-site space for bus stops if located on a public transportation corridor.”225 While not quite requiring transit access to private property, some jurisdictions require that elderly hous- ing be in proximity to transit, including bus stops.226 Ju- risdictions interested in exploring such requirements may also want to review model regulations. The Ameri- can Planning Association’s model regulations to man- date transit-supportive policies include regulations re- lated to bus stops, shelters, and benches, as does Tri- Met’s 1993 report, Planning and Design for Transit Handbook.227 4. Liability for Denying Access Failure to allow transit access may violate federal or state statutory requirements. For example, the ADA requires a clear path of travel for disabled passengers from a bus stop to a destination, e.g., a mall.228 Under some circumstances, refusal to allow transit access to private property such as malls may violate the ADA clear path requirement.229 The Job Access and Reverse Commute (JARC) pro- gram230 provides funding to develop new or expanded transportation services connecting low-income persons to employment sources and services.231 Although JARC does not create liability for refusing access to private employment centers, transit/JARC coordination en- courages extending transit service to work centers.232 In addition, employer participants in state welfare-to-work programs have an interest in providing transit access for their employees who participate in such programs.233 Denial of transit access may violate Title VI of the Civil Rights Act of 1964234 if the denial is found to be based on race or income distribution.235 The Greater Bridgeport Transit Agency raised this issue when the Trumbull Mall excluded transit buses, but the chal- 225 Id. at A-1. 226 City of Gresham Development Code [8.01]-8 (5/3/01), www.ci.gresham.or.us/departments/cedd/dp/code/article8/sectio n801.pdf. 227 CHRISTOPHER, supra note 218, at. 5–6. 228 Devaney, supra note 213, at 2. 229 Id. 230 49 U.S.C. § 5316, added to tit. 49 by § 3018 of Pub. L. No. 109-59, Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). 231 www.fta.dot.gov/printer_friendly/grants_financing_3629.html. 232 See, e.g., Transit Development Plan 2006, Central Con- necticut Regional Planning Agency, at 9, www.ccrpa.org/Transit_Development%20Plan.pdf. 233 HINEBAUGH ET AL., supra note 154, at 41. 234 Title VI, 42 U.S.C. § 2000d et seq. 235 Devaney, supra note 213, at 2. lenge was dismissed for lack of standing.236 A Center for Urban Transportation Research study of transit access to private property found that while private property managers and owners may couch objections to bus stops in terms of “undesirables” and “rowdy teenagers,”237 transit agencies suspected that racial bias was behind a significant number of incidents of shopping centers re- fusing to allow bus stops on their properties.238 B. Accessibility of Bus Stop/Bus Shelter to Disabled Passengers239 A transit agency may meet its responsibilities under the ADA240 by providing fixed route service that is ac- cessible to disabled passengers. Alternatively, a transit agency may provide transportation to disabled indi- viduals via paratransit that provides comparable ser- vice to the authority’s fixed-route service.241 When a transit agency provides such paratransit service, it must do so from the origin to the destination, but has discretion in deciding whether to provide door-to-door or curb-to-curb service.242 Paratransit does not raise the accessibility issues of bus stops serving fixed-route ser- vice. The ADA, as enforced by the U.S. Department of Transportation (DOT)243 and the U.S. Department of Justice (DOJ),244 imposes requirements related to the accessibility of both the bus stop itself and the path to a destination, either of which may be entirely outside the control of the transit agency.245 Both the DOT and the 236 Id., at 3, citing In the Matter of Westland Properties, Inc. and Greater Bridgeport Transit District, American Arbitration Association, No. 12 15 00266 94, decided Aug. 23, 1995. 237 HINEBAUGH ET AL., supra note 154, at 77. 238 Id. at 11–12. 239 See generally HENRY H. PERRITT, JR., AMERICANS WITH DISABILITIES ACT HANDBOOK (2003), ch. 6, Requirements Un- der Title III for Public Accommodations and Services Operated by Private Entities; ch. 7, Transportation and Communications Systems Requirements Under Title IV. Accessibility issues such as making route information available to visually disabled passengers are beyond the scope of this report and are not discussed in depth. See, e.g., Martin v. Metro Atlanta, RTA, 225 F. Supp. 2d 1362 (N.D. Ga. 2002)). 240 42 U.S.C. § 12101 et seq. 241 See, e.g., Anderson v. Rochester-Genesee Regional Transp. Auth., 337 F.3d 201 (2d Cir. 2003). 242 FTA Disability Law guidance, supra note 8. 243 Transportation services for individuals with disabilities (ADA), 49 C.F.R. pt. 37, www.access.gpo.gov/nara/cfr/waisidx_06/49cfr37_06.html. 244 Nondiscrimination on the basis of disability in state and local government services, 28 C.F.R. pt. 35, www.access.gpo.gov/nara/cfr/waisidx_06/28cfr35_06.html; Nondiscrimination on the basis of disability by public accom- modations and in commercial facilities, 28 C.F.R. pt. 36, www.access.gpo.gov/nara/cfr/waisidx_06/28cfr36_06.html. 245 E.g., TEXAS TRANSPORTATION INSTITUTE, supra note 1, at 60; NATIONAL COUNCIL ON DISABILITY, supra note 3, at 121, citing U.S. ACCESS BOARD, PUBLIC RIGHTS-OF-WAY ACCESS ADVISORY COMMITTEE, BUILDING A TRUE COMMUNITY: FINAL

22 DOJ have incorporated the Americans with Disabilities Act Accessibility Guidelines (ADAAG), issued by the U.S. Access Board, into their regulations.246 These re- quirements apply to new construction and alterations of existing facilities.247 ADAAG requires that site arrival points, including bus stops, be connected by an accessible route to the accessible building entrance(s) served.248 In addition, bus stops designated for lift deployment must comply with Section 810.2, Bus Boarding and Alighting Ar- eas,249 with on-street bus stops required to do so to the maximum extent practicable.250 Essentially the purpose of Section 810.2 is to ensure that there is sufficient space for a wheelchair lift or ramp to deploy.251 REPORT, 2001. (Retrieved June 15, 2004, from http://www.access-board.gov/prowac/commrept/index.htm). 246 Final Rule Adopting New Accessibility Standards— Effective Nov. 29, 2006. 71 Fed. Reg. 63263, 63264 (Oct. 30, 2006), www.fta.dot.gov/documents/ADAAG_Final_Rule.pdf. The most recent regulation specifies that new construction or alterations begun or having received final design approval before the effective date of the revised regulations and meeting regulations in effect before that effective date need not meet the new regulatory requirements. 71 Fed. Reg. 63265: 49 C.F.R. § 37.9(c)(1), as amended. Furthermore, existing building and facilities not altered after November 29, 2006, and in com- pliance with regulatory requirements in effect before that date, need not be retrofitted to comply with the amended regula- tions. 71 Fed. Reg. 63265: 49 C.F.R. § 37.9(c)(2), as amended. The revised regulation also retains the structural impractica- bility exception that is deleted from the new ADAAG for tech- nical drafting purposes. See 71 Fed. Reg. 63264. 247 ADAAG, July 23, 2004; ADA, ch. 2: Scoping Require- ments, 201, Application, www.access-board.gov/ada- aba/final.pdf. 248 Id., 206, Accessible Routes, 206.2.1, Site Arrival Points, www.access-board.gov/ada-aba/final.pdf. See THE STARKLOFF DISABILITY INSTITUTE, 11–12 ACCESS TO INDEPENDENCE, A REPORT TO THE EAST-WEST GATEWAY COUNCIL OF GOVERN- MENTS (2005) (problem with lack of clear path). 249 Id., 209.2.2, Bus Loading Zones. 250 Id., 209.2.3, On-Street Bus Stops. This replaces 10.2.1(1), which provided: Where new bus stop pads are constructed at bus stops, bays or other areas where a lift or ramp is to be deployed, they shall have a firm, stable surface; a minimum clear length of 96 inches (measured from the curb or vehicle roadway edge) and a mini- mum clear width of 60 inches (measured parallel to the vehicle roadway) to the maximum extent allowed by legal or site con- straints; and shall be connected to streets, sidewalks or pedes- trian paths by an accessible route complying with 4.3 and 4.4. The slope of the pad parallel to the roadway shall, to the extent practicable, be the same as the roadway. For water drainage, a maximum slope of 1:50 (2%) perpendicular to the roadway is al- lowed. New ADA ACCESSIBILITY GUIDELINES SIDE-BY-SIDE COMPARISON, ch. 2: Scoping Requirements, www.access- board.gov/ada-aba/comparison/chapter2.htm. 251 See Neff v. VIA Metro. Transit Agency, 179 F.R.D. 185 (W.D. Tex. 1998) (settlement included requirement that VIA construct concrete pad next to sidewalk to provide adequate room for wheelchair lift to deploy) . Design considerations may support exceeding the minimum ADA requirements. See 1995 The revised Appendix A to 49 Code of Federal Regu- lations (C.F.R.) Part 37 amends Section 810.2.2 to in- clude the provision from the former 49 C.F.R. § 37.9(c), which required that public entities, to the extent con- struction specifications are within their control, ensure bus boarding and alighting areas comply with the re- quired dimensions.252 Appendix A also notes that it may be necessary to make operational adjustments where there is not sufficient clearance to deploy wheelchair lifts or ramps,253 and that to avoid the need to make such adjustments, shelters and signs should not be placed within the required clearance.254 Where an exist- ing bus stop does not allow deployment of a lift or ramp, the bus driver is encouraged to stop at the nearest sta- ble surface.255 ADAAG does not require the installation of bus shel- ters, but does provide that where there is a bus shelter, the shelter must comply with Section 810.3.256 The re- quired bus pad may be either within or outside the shelter.257 The DOT also requires that where one bus stop is ac- cessed by multiple routes, there should be identification so that visually impaired passengers may identify the appropriate vehicle to board.258 OREGON BICYCLE AND PEDESTRIAN PLAN, II. Facility Design Standards, at 95, www.oregon.gov/ODOT/HWY/BIKEPED//docs/bp_plan_2_ii.pdf . 252 71 Fed. Reg. 63265. The provision specifically states: 810.2.2 Dimensions—-Modification to 810.2.2 of Appendix D to 36 CFR Part 1191 Bus boarding and alighting areas shall provide a clear length of 96 inches (2440 mm), measured perpendicular to the curb or ve- hicle roadway edge, and a clear width of 60 inches (1525 mm), measured parallel to the vehicle roadway. Public entities shall ensure that the construction of bus boarding and alighting areas comply with 810.2.2, to the extent the construction specifica- tions are within their control. 71 Fed. Reg. 63266. 253 Martin v. Metro Atlanta, RTA, See 225 F. Supp. 2d 1362 (N.D. Ga. 2002), p. 9 of Dec. 24, 2002, order granting prelimi- nary injunction (unpublished order, Civil Action File No. 1:01- CV-3255-TWT), mandating as part of settlement agreement that passengers requiring use of wheelchair lift or ramp wait at designated bus stop, and further requiring that if the pas- senger cannot board at that stop, the driver board the passen- ger at the nearest feasible point. 254 71 Fed. Reg. 63267. 255 Toolkit for the assessment of Bus Stop Accessibility and Safety, p. 6, n.2, citing 49 C.F.R. § 37.167(g), http://projectaction.easterseals.com/site/DocServer/06BSTK_Co mplete_Toolkit.pdf?docID=21443. 256 Id., 218.4 Bus Shelters. 257 Id. Advisory 810.2, Bus Boarding and Alighting Areas, at 251. 258 Michael Lewyn, “Thou Shalt Not Put a Stumbling Block Before the Blind:” The Americans With Disabilities Act and Public Transit for the Disabled, 52 HASTINGS L.J. 1037, 1071, n.262 (2001), citing DOT regulations: 49 C.F.R. § 37.167(c).

23 In addition to requirements for bus stops and bus shelters, accessibility issues arise concerning sidewalks. The Ninth Circuit has held that sidewalks are subject to the requirements of Title II of the ADA and Section 504 of the Rehabilitation Act, and the implementing regulations. 259 The court found that “maintaining public sidewalks is a normal function of a city” and therefore under Ninth Circuit precedent, maintaining accessibil- ity of sidewalks falls within the scope of Title II of the ADA.260 This ruling has been interpreted to mean that: “…governments will be obligated to remove barriers from their sidewalks, such as benches, wires, cracks, breaks, and sign posts, if their presence poses a barrier to the accessibility of the sidewalk to, for example, per- sons using wheelchairs or those with sight impair- ments.”261 Under a settlement agreement, the City of Sacra- mento will devote “twenty percent of its transportation funds for the next 30 years to improve sidewalks, crosswalks and curb ramps.”262 Uncertainty regarding requirements for right-of-way accessibility could be further resolved by adoption of accessibility guidelines for public rights-of-way cur- rently under development263 by the U.S. Access Board. Relevant sections include R301 Pedestrian Access Route,264 R303 Curb Ramps and Blended Transitions,265 R307 Street Furniture,266 R309 Call Boxes,267 R402 Clear Space,268 R406 Ramps,269 R409 Signs,270 and R410 Bus Stops (R410.1 Bus Boarding and Alighting Areas, R410.2 Bus Shelters).271 A number of these sections are substantially similar to the existing requirements dis- cussed above, while others place more general guidance from the existing guidelines in the specific context of the public right-of-way. For example, street furniture “DOT has declined to prescribe specific means for such identifi- cation. See 49 C.F.R. § 37.167, app. D.” 259 Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002). 260 Id. 261 Municipal Research & Services Center (MRSC), Ameri- cans with Disabilities Act, Dec. 2006, www.mrsc.org/Subjects/ Legal/ada/adainfo.aspx. 262 Id. 263 Public Rights-of-Way, www.access-board.gov/prowac/index.htm. 264 Public Rights-of-Way, ch. R3, Technical Provisions, p. 30. Advisory R301.3.1 requires that street furniture, including newspaper racks and bus shelters, not reduce the required width of the pedestrian access route, p. 31, www.access- board.gov/prowac/draft.pdf. 265 Id. at 34. 266 Id. at 43. 267 Id. at 46. 268 Id. Public Rights-of-Way, ch. R4, Supplementary Techni- cal Provisions, R402, Clear Space, p. 48. 269 Id. at 50. 270 Id. at 54. 271 Id. at 58. would be required to have clear space around it and be connected to a pedestrian access route.272 The draft guidelines provide: Where bus stops are marked along existing streets by the placement of signage, benches, or shelters, other features necessary to accessibility, such as surface improvements and curb ramps, will be subject to the program access re- quirements of the U.S. Department of Justice title II regulation at 28 C.F.R. 35.151 or the U.S. Department of Transportation 504 regulation at 49 C.F.R. Part 27. Transportation, public works, and transit agencies should consider including needed improvements in their transi- tion plans and other program accessibility planning. Fur- thermore, the placement of such items is subject to us- ability and protruding objects provisions that apply to street furniture. Bus stop benches and shelters shall not intrude into an existing pedestrian access route….Signage required at bus stops is scoped at R210.2 Bus Route Identification.273 The guidelines draw distinctions between bus stops that are merely designated by signage and those that involve construction. For example, merely placing a bus stop sign to mark a bus stop at a site without a side- walk would not require the installation of an improved surface.274 The proposed guidelines do not address the issue of which entity is responsible for implementation. Making that determination should depend on which entity has control over or ownership of the facility at issue. For example, the duty to provide adequate curb cuts, which are needed to provide access to a bus stop, generally falls on the municipal government.275 The duty to main- tain sidewalks generally resides with municipal gov- ernments as well.276 Assuming the transit agency is responsible for con- structing the bus stop pad, whether the transit agency’s duty ends with proper construction of the pad and im- mediate shelter area or extends beyond depends on state and local law governing torts and the responsibil- ity for maintaining the public right-of-way, as well as any agreements governing that responsibility. Depend- ing on the jurisdiction, the transit agency may incur some liability based on decisions to locate a bus stop where the existing sidewalks are inadequate or on fail- ure to request repairs of sidewalks that become inade- 272 Id. R307.2, Clear Floor or Ground Space. 273 Id. at 28–29. 274 Id. Technical Assistance Q&A for Alterations Projects, p. 15. 275 See, e.g., U.S. Department of Justice, Civil Rights Divi- sion, Disability Rights Section, The ADA and City Govern- ments: Common Problems: Curb Ramps (discussing city gov- ernment obligation to install curb ramps, and including bus stops on list of priority sites), www.ada.gov/comprob.htm; An- drea Kelly, Federal Disability Rules Require Many Redos, ARIZONA DAILY STAR, March 5, 2007, posted by Disability Technology & News, http://disabilitytechnews.wordpress.com/2007/03/13/federal- disability-rules/. See also II.A.1, Duties Owed, supra this re- port. 276 See id.

24 quate after the bus stop is designated. Such liability could accrue even if the transit agency was not respon- sible for constructing the bus stop pad. Additionally, efforts to locate bus stops to provide access and to main- tain accessibility will be considered when the Federal Transit Administration assesses the agency’s efforts to comply with ADA requirements.277 C. Civil Rights Bus stop location may raise civil rights issues. The Federal Transit Administration counts the distribution of bus stop shelters and any amenities such as benches, lights, and telephones as an indicator of a transit agency’s compliance with Title VI278 of the Civil Rights Act.279 As noted above, denying transit access to private property may violate Title VI if the refusal is based on the race of passengers.280 D. Advertising Hiring an outside vendor to construct, maintain, and/or operate shelters, in exchange for allowing the vendor to sell advertising on the shelters, is a popular way to pay for bus shelters.281 Such agreements often bring in revenue for the municipality by requiring that the vendor share a portion of the advertising receipts with the municipality.282 Advertising may also be viewed as a means of providing private sector support for public transportation.283 1. Whether Allowed by Local Jurisdiction Advertisements on bus shelters may be subject to regulation at the state and/or local level, depending on the location of the bus shelters and state and local law. For example, a survey of state DOTs by the American Association of State Highway and Transportation Offi- cials on regulations concerning advertising on street furniture, specifically bus shelters, indicated a range of approaches, including prohibiting advertising in the state right-of-way, regulating bus shelter advertising under billboard/outdoor advertising regulations, and 277 See, e.g., Suburban Mobility Authority for Regional Transportation (SMART), Detroit, Michigan, Review of Reli- ability, Maintenance, and Operation of Accessible Fixed Route Bus Service, May 9–12, 2005, p. 10, http://www.fta.dot.gov/civilrights/ada/civil_rights_3899.html. 278 FTA Circular 4702.1A, ch. V, § 2. 279 42 U.S.C. § 2000d. 280 See Hendricks et al., supra note 217. 281 See generally BEVERLY R. SILVERBERG, SYNTHESIS OF TRANSIT PRACTICE 32, TRANSIT ADVERTISING REVENUE: TRA- DITIONAL AND NEW SOURCES AND STRUCTURES (Transit Cooperative Research Program, 1998). 282 For example, in 1975 the City of New York had an agreement with its vendor that required the vendor to pay the city 5 percent of the vendor’s advertising receipts. Flynn v. Faria, 139 Misc. 2d 699, 528 N.Y.S.2d 486 (1988). See § V.A, Franchise Agreements infra this report. 283 See Palm Beach County, supra note 219, at 8. not regulating bus shelter advertising at all.284 In addi- tion, some jurisdictions do not allow advertising on bus shelters owned by the transit agency, but do allow ad- vertising on privately owned bus shelters.285 While a number of jurisdictions have amended their prohibitions on outdoor advertising to enable bus shel- ter franchise agreements,286 some jurisdictions still pro- hibit bus shelter advertising, usually under their sign codes.287 2. Restrictions on Type of Advertising Restrictions on the type of advertising allowed must comport with the First Amendment and state constitu- tional protection of speech. An in-depth analysis of these issues is beyond the scope of this report.288 It is 284 Outdoor Advertising on Street Furniture Ads/Parks, sur- vey of state requirements, www.fhwa.dot.gov/realestate/aashto2006/strfurnads.htm. Min- nesota, for example, prohibits advertising in the public right- of-way, except in designated areas, www.ci.madison.wi.us/neighborhoods/buildb/bus_stops.htm. 285 Minneapolis: www.kingsfield.org/NRP/NRP%20mnts%2005-1.htm. For ex- ample, under the South Carolina Code of Laws, bus shelters are regulated under Title 57, Highways, Bridges and Ferries, ch. 25, Outdoor Advertising, art. 1, General Provisions. Section 57-25-30, Erection of bus shelters; location; permit require- ment; fee provides: (A) Bus shelters, including those on which commercial adver- tisements are placed, may be erected and maintained within the rights-of-way of public roads by the State. A bus shelter located within the right-of-way of a state road shall comply with all ap- plicable requirements of the Department of Transportation, Ti- tle 23 of the United States Code, and Title 23 of the Code of Federal Regulations. A bus shelter located within the right-of- way of a road other than a state road shall comply with all ap- plicable requirements of the municipality or county within whose jurisdiction it is located. (B) A person erecting a bus shelter shall obtain a permit for each shelter location from the Department of Transportation. The permit shall cost twenty-five dollars. Permit fees must be placed in the department's trust fund and used for public trans- portation purposes. www.scstatehouse.net/code/t57c025.htm. See also Procedures for Permitting Bus Shelters on Rights-of-Way of Public Roads, www.dot.state.ga.us/topps/op/tsd/6755-10.htm. 286 Greg J. Borowski, Proposal for Ads on Bus Shelters in City Gets Rolling Again, THE MILWAUKEE JOURNAL SENTINEL, Oct. 2, 1998. Milwaukee now has a bus shelter franchise agreement with Clear Channel Outdoor. See § V.A, Franchise Agreements infra this report. 287 E.g., div. 26, Sign Ordinance, § 26.4, Prohibited Signs, http://stpetebeach.org/commdev/ldc/prohibit.asp. See also Re- quest for Proposals, RFP # 10-01-06, Bus Shelter Program Issued by Transit Management of Mobile dba The Wave Tran- sit for the City of Mobile, Alabama, 22.0 Compliance with Scope of Work (prohibiting advertisements on city bus shel- ters), www.thewavetransit.com/BusinessInitiatives/files/ BusShelterRFP.pdf. 288 See NORMAN Y. HERRING & LAURA D'AURI, TRANSPORTATION RESEARCH BOARD, NATIONAL RESEARCH COUNCIL, RESTRICTIONS ON SPEECH AND EXPRESSIVE ACTIVITIES IN TRANSIT TERMINALS AND FACILITIES (1998).

25 important to keep in mind that reasonable time, place, and manner restrictions are generally permissible; con- tent-based restrictions may be more problematic. 289 While the Supreme Court has held that a public entity may prohibit all political advertising on bus benches/shelters,290 such restrictions on advertising “must not be arbitrary, capricious, or invidious.”291 Fol- lowing this reasoning, the Ninth Circuit Court of Ap- peals has held that regardless of whether a bus shelter can be categorized as a traditional public forum,292 pro- hibiting specific political advertising in a bus shelter based on the contents of the advertising is unconstitu- tional.293 In particular, prohibiting advertisements based on the viewpoint expressed in the advertisements is unconstitutional.294 Restrictions on the percentage of advertisements that can be devoted to typically regulated products such as tobacco and alcohol or outright prohibitions on such advertisements seem common. For example, Colorado regulates advertising on bus benches and bus shelters in the state right-of-way.295 The Colorado Department of Transportation’s (CDOT) Right of Way Manual prohib- its bus bench and bus shelter advertising that relates to tobacco or alcoholic products and “objectionable adver- tising which is obscene, prejudicial, offensive, degrading or discriminatory as determined by CDOT.”296 289 See, e.g,. Mark Cordes, Sign Regulation After Ladue: Ex- amining the Evolving Limits of First Amendment Protection, 74 NEB. L. REV. 36 (1995). 290 Lehman v. Shaker Heights, 418 U.S. 298, 91 S. Ct. 2714, 41 L. Ed. 770 (1974). It remains to be seen how the holding in Lehman, a plurality opinion, would be applied in other con- texts, i.e., dealing with political advertisements relating to issues rather than candidates running for election. See Vikram David Amar, Must Public Subway Trains That Feature Adver- tising Carry Anti-Abortion Ads? What the First Amendment Has to Say, FindLaw, Jan. 20, 2006, http://writ.news.findlaw.com/amar/20060120.html. 291 Lehman, 418 U.S. at 303. 292 Cf. Id., where the bus advertising space was deemed not to be a public forum. 293 Metro Display Advertising v. City of Victorville, 143 F.3d 1191 (9th Cir. 1998). 294 Id. The court not only found the restrictions based on the content of speech to be unconstitutional, but rejected the city officials’ assertion of qualified immunity as it is clearly unlaw- ful for government officials to engage in viewpoint discrimina- tion in regulating advertising. 295 Outdoor Advertising Act, C.R.S § 43-1-401 et seq.; Rules and Regulations Pertaining to Outdoor Advertising, 2 C.C.R. 601-3. 296 COLORADO DEPARTMENT OF TRANSPORTATION, RIGHT OF WAY MANUAL, ch. 6: Roadside Beautification Policies, Proce- dures and Information, Dec. 2005, at 21, www.dot.state.co.us/ROW_Manual/Chapter6/Chapter6.pdf. The RIGHT OF WAY MANUAL also covers such issues as place- ment of bus benches and shelters, maximum number of benches and shelters per stop, construction requirements, and contract and indemnification requirements. The District of Columbia restricts the number of ad- vertisements related to tobacco or alcoholic products to 50 percent of advertisements, and requires the franchi- see to remove any advertisement the Mayor determines to be “deceptive, misleading, untruthful, obscene, or in violation of [consumer protection provisions].”297 West- chester County, New York, prohibits advertising related to politics, religion, alcohol products, and tobacco prod- ucts.298 E. Environmental Issues At least one smart-growth commentator has argued that urban planning should encourage walking and biking, and planners should design transit systems to further that policy goal. One of the amenities cited to advance combining walking with transit is providing bus shelters.299 The Federal Transit Administration/Federal Highway Administration environmental regulation includes a number of bus-related projects as predetermined to be categorical exclusions: “alterations to buses or facilities to make them accessible for the elderly and persons with disabilities; installation of fencing, signs, pave- ment markings, small passenger shelters, and traffic signals where no substantial land acquisition or traffic disruption will occur; and construction of pedestrian and bicycle lanes, paths, and facilities.”300 Where bus stop projects may have significant impacts, for example, involving a new highway right-of-way or otherwise be- ing part of a larger project with significant environ- mental effects, more extensive environmental documen- tation will be required.301 Bus rapid transit projects are considered to be new start projects302 and thus under the environmental impact statement requirements of the National Environmental Policy Act of 1969 (NEPA) 297 D.C. CODE ANN., tit. 9, Transportation Systems, subtit. IV., Miscellaneous, ch. 11A, Bus Shelters, § 9-1154, Advertis- ing. 298 Westchester County, supra note 102. Appendix B: Inter- Municipal Agreements for Bus Shelters, http://www.westchestergov.com/transportation/images/Bus%20 Service%20Guidelines.pdf. 299 Wendy Collins Perdue, The Public's Health and the Law in the 21st Century, The Proceeding of the Third Annual Part- nership Conference on Public Health Law, Concurrent Session, Using Law for Community Health, Smart Growth for Commu- nity Development, 32 J.L. MED. & ETHICS 27, 28 (2004). 300 Circular No. C 9300.1A, Oct. 1, 1998, 6. Environmental Considerations, www.fta.dot.gov/laws/curculars/leg_reg_4128.html. 301 Id. See, e.g., Downtown East Valley Transit Improvement Plan Santa Clara/Alum Rock Corridor. Public Workshop: Re- view of Draft Plans, Aug. 14, 2003 (Enhanced bus alternative requires EIS/EIR, www.vta.org/projects/dtev/docus/library/powerpoint/8_14_03_fi nal_scar_public_mtg_presentation.pdf ; www.sanjoseca.gov/clerk/CommitteeAgenda/BBT/05_02_05docs /05_02_05_BBT_ItemA2.pdf. 302 New Starts Project Planning & Development, www.fta.dot.gov/planning/planning_environment_5221.html.

26 must be justified under a detailed written analysis of the projects’ environmental impact and the proposed alternatives.303 Bus stops and bus shelters that are part of a bus rapid transit project should not be segmented from the project and processed under the less rigorous categorical exclusion process.304 Washington State specifically provides by statute that the construction or designation of bus stops and bus shelters are exempt from the Environmental Im- pact Statement requirement of the State Environ- mental Policy Act of 1971 (SEPA). The Washington Su- preme Court held that where the type of project that would normally be subject to a categorical exclusion may have significant impacts on the environment, an environmental impact statement will nonetheless be required.305 In the wake of that decision, the Washing- ton legislature revised SEPA, and the Washington court then rejected the Downtown premise that “courts may look beyond the nature of the activity to determine whether an otherwise categorically exempt activity is a major action requiring environmental review.”306 Hawaii has held that where the environment is particularly sensitive, even a routine bus stop placement may re- quire environmental documentation.307 F. Enabling Legislation Jurisdictions may set responsibilities for locat- ing/maintaining bus stops/bus shelters, including fran- chising of bus shelters, via local ordinance. A change in responsibility may encounter local resistance, both from the local governments that stand to lose franchise reve- 303 Environmental Analysis & Review, www.fta.dot.gov/planning/planning_environment_5222.html. 304 See, e.g., Preparation of an Environmental Impact Statement for the East Bay Bus Rapid Transit Project in Berkeley, Oakland, and San Leandro, California, 69 Fed. Reg. 3423-3425 (Jan. 23, 2004). 305 Downtown Traffic Planning Committee v. Royer, 26 Wash. App. 156, 160–61, 612 P.2d 430, 433–434 (Wash. App. 1980), citing WASH. ADMIN. CODE 197-10-170(1). 306 Kucera v. DOT, 140 Wash. 2d 200, 215, 995 P.2d 63, 71 (Wa. 2000), citing Dioxin/Organochlorine Ctr. v. Pollution Con- trol Hearings Board, 131 Wash. 2d 345, 932 P.2d 158, 165 (Wa. 1997). 307 www.hawaii.gov/health/oeqc/notice/notice/23mar1998.pdf (draft environmental assessment required for improvements including “realigning an existing bus stop and building a new bus stop to accommodate city and visitor buses; planting beach naupaka and coconut trees; building a new viewing platform with handicap access ramp; installing new public parking on the mauka side of Kamehameha Highway; maintaining the beach…and realigning the bicycle pathway), www.hawai.gov/health/oeqc/notice/notice/23mar1998.pdf. See also Skywest, Inc. v. City of Duvall, SHB 98-37 & 46 (Shorelines Hearings Board, State of Washington, June 10, 1999) (special requirements for shoreline development, avail- able at http://www.eho.wa.gov/FinalOrders.asp?Year+1999 (Last visited July 19, 2007)). nue and from the transit agency not prepared to admin- ister a bus shelter program.308 Some examples of enabling legislation follow. District of Columbia.—Chapter 11A of the D.C. Code governs bus shelters, covering numerous issues includ- ing selection of bus shelter locations, franchising, com- pensation for advertising, and restrictions on advertis- ing. The government must enter into a franchise agreement to provide shelters in the District, and such agreement must be the exclusive agreement for private installation and maintenance of shelters with advertis- ing. The statute: • Places a limit of 90 percent on the number of bus shelters in the District that may have advertising. • Sets forth the time frame for the franchise. • Prescribes the franchisee responsibilities that must be included in the franchise agreement. • Prescribes parameters of the agreement concerning number and location of initial order of bus shelters, design, and minimum standards for maintenance and replacement. • Allows the Mayor to include additional terms.309 The Mayor must, based on consultation with the City Council, select locations for bus shelters.310 Major provi- sions of the D.C. Bus Shelter Franchise Agreement are summarized infra this report. Minneapolis, Minnesota.—The bus shelter franchise is enacted as an appendix to the city code.311 Major pro- visions are summarized infra this report. Oakland, California.—The transit agency is respon- sible for locating bus shelters, but must obtain a permit to do so from the Director of Public Works. The permit must provide that: • The permittee shall maintain the public bus shelters in good repair and safe and sightly condition at permit- tee’s expense and to the satisfaction of the Director of Public Works. All necessary electrical and telephone connections, cables, wires, and associated appurte- nances shall be installed underground in appropriate conduits and in accordance with applicable codes. • The permittee shall save the city harmless from any and all losses, claims, or judgments for damage to any person or property arising from the installation or maintenance of the public telephones or public bus shel- ters. 308 Adrienne Packer, Public Transportation: Bill Transfers Bus Shelter Oversight. Responsibility for Building Stops Would Shift from Local Governments to RTC, LAS VEGAS REVIEW- JOURNAL,. May 10, 2005, www.reviewjournal.com/lvrj_home/2005/May-10-Tue- 2005/news/26482451.html. 309 D.C. CODE § 9-1152. The franchise agreement. 310 D.C. CODE § 9-1153. Location of bus shelters. 311 City Code of Ordinances, app. G, § 16, www.municode.com/resources/gateway.asp?pid=11490&rsid=2 3.