Item 6 Staff Report Request for Amicus Participation in Barden v. City of Sacramento, United States Ninth Circuit Court of Appeals, Case Number 01-15744, at No Cost to the TownMEETING DATE: 11/18/02
ITEM NO. `c)
COUNCIL AGENDA REPORT
DATE: November 11, 2002
TO: MAYOR AND TOWN COUNCIL
FROM: ORRY P. KORB, TOWN ATTORNEYA�'
SUBJECT: REQUEST FOR AMICUS PARTICIPATION IN BARDEN v. CITY OF
SACRAMENTO, UNITED STATES NINTH CIRCUIT COURT OF APPEALS,
CASE NUMBER 01-15744, AT NO COST TO THE TOWN
RECOMMENDATION:
Authorize the Town Attorney to include the Town of Los Gatos as an amicus curiae in the case of
Barden v. City of Sacramento, United States Ninth Circuit Court of Appeals, case number 01-15744,
at no cost to the Town.
BACKGROUND:
The League of California Cities is urging cities to join an amicus curiae brief in the Barden v. City
of Sacramento case. The issue is whether a city's ownership of sidewalks in the public rights -of -way
constitutes a "program" subject to Title II of the Americans with Disabilities Act ("ADA").
Disabled individuals filed a lawsuit against the City of Sacramento claiming that the city's
sidewalks must be made "accessible" by the removal and replacement of displaced or broken
concrete; removal of telephone and utility poles and other "obstructions" in the sidewalk; and by
the removal and replacement of sidewalks with an "excessive" cross slope. The trial court found
that existing city sidewalks are not programs and are not subject to the program access requirements
of the ADA. The court of appeals reversed the decision and held that a city's sidewalks must be
made accessible.
The amicus brief will emphasize the enormous financial implications for cities, counties,
PREPARED BY: ORRY P. KORB, TOWN ATTORNEY
OPK:LMB/wp [N:1ATY\Sacto.AMI.TCR.wpd]
Reviewed by: Manager j 3Z Assistant Town Manager Clerk Finance
Community Development
Rev: 11/11/02 2:48 pm
Reformatted: 7/19/99 File# 301-05
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: REQUEST FOR AMICUS PARTICIPATION IN BARDEN v. CITY OF
SACRAMENTO, UNITED STATES NINTH CIRCUIT COURT OF APPEALS,
CASE NUMBER 01-15744, AT NO COST TO THE TOWN
November 7, 2002
telecommunication and utility companies. Further that the ADA does not require the immediate
replacement of sidewalks constructed long before the advent of the ADA; rather, the ADA mandates
an incremental process of providing "accessibility" by requiring that those structures built or
significantly altered after the effective date of the ADA need be construed or altered to make them
accessible to the disabled.
Attachments:
Distribution:
Letter from Mike Kashiwagi, Director of Public Works, City of Sacramento, dated
October 14, 2002
Gerald C. Hicks, Esq., Sacramento City Attorney's Office, 980 9`h Street,10`h Floor,
Sacramento, CA 95814
s
- vv
DEPARTMENT OF
PUBLIC WORKS
OFFICE OF THE DIRECTOR
October 14, 2002
John Curtis P.E.
Director of Parks and Public Works
Los Gatos
Los Gatos CA 95031
Dear Mr. Curtis:
CITY OF SACRAMENTO
CALIFORNIA
660 J STREET
SUITE 250
SACRAMENTO, CA
95814-2413
PH 916-808-7100
FAX 916-264-5573
www.cityofsactamento.org
am writing to you concerning a federal lawsuit brought against the City of Sacramento which has serious implications for all
cities and counties (as well as telecommunications and utility companies) in California and throughout the United States. A law
firm representing disabled individuals brought a lawsuit against the City of Sacramento claiming that under the Americans with
Disabilities Act (ADA), a city's sidewalks must be made "accessible" by the removal and replacement of displaced or broken
concrete; by the removal of telephone and utility poles and other "obstructions" in the sidewalk; and by the removal and
replacement of sidewalks with an "excessive" cross slope. The ADA does not require the immediate replacement of sidewalks
constructed long before the advent of the ADA; rather, the ADA mandates an incremental process of providing "accessibility" by
requiring that those structures built or significantly altered after the effective date of the ADA need be constructed or altered to
make them accessible to the disabled.
The United States District Court in Sacramento agreed with the City of Sacramento in holding that a city's existing sidewalks
need not be made "accessible." On June 12, 2002. the Ninth Circuit Court of Appeals reversed the District Court and held that a
city's sidewalks must be made accessible. The financial implications for cities, counties, telecommunication and utility
companies if this decision is permitted to stand are enormous. This decision is the only decision on this issue in the United States
and must be followed by all public entities in the Western United States and will probably be followed by lower federal courts in
the remainder of the United States.
The City of Sacramento is in the process of preparing a Petition asking the United States Supreme Court to review the matter and
reverse the Ninth Circuit Court of Appeals. The City is requesting amicus participation in both submitting the Petition asking the
Supreme Court to take the case and on the merits of the case if it is accepted by the Court. Amicus counsel has already been
retained and amicus participation by other entities and organization.: would be at no cost.
Enclosed is a form response authorizing your participation in the Amicus Petition and briefs on the merits. The deadline for
submission of the City's Petition is December 4, 2002. 1n order to allow sufficient time for inclusion on the Amicus Petition we
need a response by November 15, 2002. 1 appreciate your time in considering this matter and hope that Los Gatos, joins the
National League of Cities and members of the League of California Cities in asking the Supreme Court to review this matter and
overturn the Ninth Circuit.
If you have any questions or concerns, you or your legal counsel may contact Gerald C. Hicks at the Sacramento City Attorney's
Office at (916) 264-5346.
Sincerely,
Mike Kash
Director of
Enclosure
gi
lic Works
Town Council Minutes November 18, 2002
Redevelopment Agency Los Gatos, California
AMICUS BRIEF/BARDEN VS CITY OF SACRAMENTO (06.28)
Motion by Mr. Pirzynski, seconded by Mrs. Decker, that Council authorize the Town Attorney to
include the Town of Los Gatos as an amicus curiae in the case of Barden vs. City of Sacramento,
United States Ninth Circuit Court of Appeals, Case 01-15744, at no cost to the Town. Carried
unanimously.
TOWN MANAGER/AGREEMENT/TOWN OF LOS GATOS/RESOLUTION 2002-179 (07.29)
Motion by Mr. Pirzynski, seconded by Mrs. Decker, that Council adopt Resolution 2002-179
entitled, RESOLUTION OF TOWN OF LOS GATOS AMENDING AGREEMENT
BETWEEN THE TOWN OF LOS GATOS AND TOWN MANAGER AND AUTHORIZING
THE MAYOR TO SIGN AMENDMENT ON BEHALF OF THE TOWN OF LOS GATOS.
Carried unanimously.
DISADVANTAGED BUSINESS ENTERPRISE/DBE/RESOLUTION 2002-180 (08.33)
Motion by Mr. Pirzynski, seconded by Mrs. Decker, that Council adopt Resolution 2002-180
entitled, RESOLUTION OF TOWN OF LOS GATOS AUTHORIZING DISADVANTAGED
BUSINESS ENTERPRISE (DBE) PARTICIPATION FOR USE ON U.S. DEPARTMENT OF
TRANSPORTATION FUNDED PROJECTS FOR FISCAL YEAR 2002-03. Carried
unanimously.
HILLTOP DRIVE 104/POOL & DECK/APPEAL DENIAL/RESOLUTION 2002-181 (09.15)
Motion by Mr. Pirzynski, seconded by Mrs. Decker, that Council adopt Resolution 2002-181
entitled, RESOLUTION OF TOWN OF LOS GATOS DENYING AN APPEAL OF THE
DECISION OF THE PLANNING COMMISSION DENYING A REQUEST FOR A
GRADING PERMIT TO CONSTRUCT A POOL AND DECK ON PROPERTY ZONED HR-
. Carried unanimously.
VERBAL COMMUNICATIONS (XX.28)
No one from the audience addressed Council this evening.
COUNCIL MATTERS (26.28)
There were no Council Matters discussed this evening.
MANAGER MATTERS (27.28)
There were no Manager Matters discussed this evening.
APPOINTMENT OF MAYOR AND VICE MAYOR
Mayor Attaway spoke of the wonderful year that he had while serving as Mayor. He spoke of the
many people he met and the ribbon cuttings he attended. He praised Council for their cooperation and
decorum during meetings and with the constituents. He noted the many good things that are going
on in the community and the excellent staff and Town Manager that have worked toward those goals.
He particularly praised the Public Works Director, John Curtis, who has been instrumental in
accomplishing so many of the capital improvement projects.
N:1CLK\Council Minutes\2002 M 1 1- 18-02. wpd
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