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EASTERN PARALYZED VETERANS ASSN. OF PENNSYLVANIA I

August 14, 1987

Eastern Paralyzed Veterans Association Of Pennsylvania Inc., and James J. Peters
v.
Dudley R. Sykes, Commissioner, Philadelphia Department of Public Property, and City of Philadelphia



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 I. Introduction

 This action centers on the renovation of the Columbia Avenue subway station in Philadelphia. Presently before the Court are two motions, defendants' motion to dismiss the complaint and plaintiffs' motion for partial summary judgment, and various responses. The Court has also received the Department of Transportation's amicus curiae memorandum of law. That memorandum focuses on the regulations promulgated by the Department of Transportation (DOT) regarding the accessibility of mass transportation facilities and mass transportation services for handicapped individuals. See generally 49 C.F.R. §§ 27.61-.67 (Subpart C) and §§ 27.71-.77 (Subpart D).

 In a related case I determined that Subpart D controlled over Subpart C. Disabled in Action v. Sykes, C.A. 86-2316 slip op. at 18 (E.D. Pa. December 30, 1986). When Disabled in Action was decided, the Court did not have the benefit of DOT's interpretation of Subparts C and D. I have examined DOT's interpretation of the relationship between Subpart C and Subpart D and the applicable legal standards, and I now conclude that the decision in Disabled in Action was not in accordance with DOT's regulations.

 II. Facts

 The facts surrounding the renovation of the Columbia Avenue subway station are set forth in the Disabled in Action opinion and need not be repeated here. Suffice it to say:

 1. The renovations cost $ 5.3 million of which $ 4.3 million was received from the federal government. *fn1"

 2. The early plans for the renovations included provisions for elevators as well as stairs.

 3. Later, the City notified the Urban Mass Transportation Administration (UMTA) of its intention to delete the elevators from the renovation plans. UMTA informed the City that the deletion could be made without UMTA's approval. *fn2"

 4. The Columbia Avenue subway station does have sufficient space for the installation of elevators. The elevators would cost $ 100,000 to $ 150,000 each with an annual maintenance cost of approximately $ 12,000 each.

 III. The Legal Framework

 The outcome of the present question depends on the interplay among various statutes, regulations, judicial decisions, and agency pronouncements. Thus, before examining the questions raised by the parties, it is first necessary to review the applicable law.

 In 1973 Congress amended the Urban Mass Transportation Act (UMT Act), 49 U.S.C.A. § 1601a et seq., by providing that:

 
It is hereby declared to be the national policy that elderly and handicapped persons have the same right as other persons to utilize mass transportation facilities and services; that special efforts shall be made in the planning and design of mass transportation facilities and services so that the availability to elderly and handicapped persons of mass transportation which they can effectively utilize will be assured; and that all Federal programs offering assistance in the field of mass transportation (including the programs under this chapter) should contain provisions implementing this policy.

 49 U.S.C.A. § 1612(a) (West 1976).

 In 1975, Congress amended section 165(b) of the Federal-Aid Highway Act (FHWA), 23 U.S.C.A. § 101 et seq., to provide that:

 
The Secretary of Transportation shall require that projects receiving federal financial assistance under [ 23 U.S.C. § 142(a), (c), 23 U.S.C. § 103 (e)(4) or] section 147 of the Federal-Aid Highway Act of 1973 shall be planned, designed, constructed, and operated to allow effective utilization by elderly or handicapped persons who, by reason of illness, injury, age, congenital malfunction or other permanent or temporary incapacity or disability, including those who are nonambulatory wheelchair-bound and those with semiambulatory capacities, are unable without special facilities or special planning or design to utilize such facilities and services effectively. The Secretary shall not approve any program or project to which this section applies which does not comply with the provisions of this subsection requiring access to public mass transportation facilities, equipment, and services for elderly or handicapped persons.

 See 23 U.S.C.A. § 142, note (West Supp. 1987).

 Also implicated by the present litigation is 42 U.S.C.A. § 4151 et seq., the Architectural Barriers Act of 1968 (the "Barriers Act"). The Barriers Act requires that the General Services Administration consult with the Department of Health and Human Services and "prescribe standards for the design, construction, and alteration of buildings . . . to insure whenever possible that physically handicapped persons will have ready access to, and use of . . . buildings." 42 U.S.C.A. § 4152 (West 1977). The definition of the term "building" appears in the margin. *fn3"

 In addition, Congress, in 1973, enacted section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.A. § 794. The statute provides:

 
No otherwise qualified individual with handicaps in the United States, as defined in section 706(g) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

 29 U.S.C.A. § 794 (West Supp. 1987). On April 28, 1976, President Gerald R. Ford directed the department of Health, Education and Welfare (HEW) to coordinate the implementation of the Rehabilitation Act, section 504, for all of the federal agencies. See Executive Order No. 11914 April 28, 1976 (entitled "Nondiscrimination with Respect to the Handicapped in Federally Assisted Programs").

 In 1977, HEW issued a regulation to bind agencies and recipients of federal funds. 45 C.F.R. Part 84. The ...


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