Wheelchair-bound man runs into sidewalk roadblocks

Jesse Magaña rolled his wheelchair down the sidewalk, pointing out the bumps, cracks, overgrown weeds and settling spots where sections of concrete don’t meet.

To people who walk around on two legs, these are minor details that barely merit notice. To Magaña, who was paralyzed from the chest down in a car accident in 1997, these minor details are big problems.

To a downsized staff at the city of Vancouver — with one staffer currently squeezing sidewalk complaints into a host of other street-related responsibilities — they’re little liability issues that don’t merit much enforcement muscle.

“In these cases, it is the property owner’s responsibility to maintain the sidewalks that front their property,” engineering technician Erik Bjerke told Magaña in an email earlier this year. When the city determines that a sidewalk problem violates the federal Americans with Disabilities Act, it sends a certified letter and photo of the violation to the property owner. But after that, the ball is in the property owner’s court.

And there it can stay. “As far as how fast they fix it, or if they fix it at all, it’s up to them,” Bjerke concluded. “We try our best to get compliance.”

Vancouver public works director Brian Carlson can’t recall the city ever forcing a property owner to fix a sidewalk through fines or legal action. Nor has it billed a property owner for overdue work the city decided to take on itself. Many property owners don’t even realize that adjacent sidewalks are their responsibility to maintain, he said, so the city prefers “education and information” over enforcement.

City code requires that new construction and roadway redevelopment always include ADA-compliant sidewalks and corner curb ramps, and Community Development Block Grants can be sought to replace older curbs that lack ramps but aren’t part of a larger project.

But aging, dangerous or just-plain-missing sidewalks are an emerging and potentially costly dilemma for governments everywhere, Carlson said. Clark County public works spokesman Jeff Mize said: “There are ADA violations scattered all over. We are constantly making improvements. It’s a game of catch-up.”

Carlson said Portland attacks the problem aggressively, with a dedicated sidewalk team that presses property owners to make repairs; failing that, the city does the job and presents the property owner with the bill.

Vancouver and other Clark County jurisdictions have declined to play such hardball, he said. “The city is reluctant to do that,” he said. “The cost (for the property owner) can be considerable.”

Public works spokeswoman Loretta Callahan said the city’s recently merged transportation and public works departments are “extremely lean” when it comes to handling sidewalk complaints — which aren’t all that common, anyway.

“We get a lot more complaints about streetlights and potholes,” Carlson said.

None of which satisfies Magaña.

“They tell me code enforcement is complaint driven. OK, fine,” he said. He’s been complaining since last fall, and not enough has been done. He’s not interested in excuses about city staffing or costs to neighbors.

“I don’t have any sympathy for that. The law is the law,” he said.

East-side obstacles

Magaña, 54, won an $8 million lawsuit against Hyundai America stemming from the accident that left him disabled. He has become a dedicated advocate for disability rights.

He lives on the east side of town, in the Fircrest neighborhood, and said he’s complained to the city about no fewer than 60 separate sites where it’s difficult for his wheelchair to go. If it’s tough for him, he figures, it may be impossible for someone whose arms haven’t already developed into tree trunks. “It’s not just my safety, but others’ safety as well that I am concerned about,” he said.

Magaña provided a wheelchair for a reporter to share his experience venturing down the west side of 112th Avenue and east along Mill Plain; maneuvering even the easiest of sidewalks is scary, confusing and laborious.

“If I don’t get a running start, I’m going to bounce back,” Magaña said, pointing out a tiny ledge separating two squares of sidewalk. “What I tend to do is tilt up those little wheels in front.”

According to diagrams and ADA criteria provided by the city, a sidewalk section that rises or drops one inch across one foot in length is out of compliance; so is a gap of half an inch between sections.

Farther down the block, Magaña stopped: “This is the part I don’t like the most.” He faced a long stretch of sidewalk that was overgrown with vegetation on both sides; to get past it, he had to roll on top of the green stuff, his wheels not touching concrete at all. This problem could easily be fixed in 10 minutes by a property owner with a weed whacker.

Things were even tougher when the sidewalk was interrupted by driveways, many of which forced Magaña to struggle over bumps or detour around cracked driveway aprons. Sometimes he had to proceed at a steep tilt. “If I’m going to fall, I’m going to fall that way,” he said, pointing at the street.

Northeast 112th Avenue was recently designated a state “safety corridor,” Magaña noted with irony — meaning it’s considered dangerous and worthy of additional spending on safety measures — but for Magaña, the situation goes from bad to worse. He travels this route daily — from his home on Northeast 122nd Avenue, west on Ninth Street and south on 112th Avenue, east on Mill Plain and then north up 136th Avenue — because he needs to exercise and lose weight. “Three quarters of my body doesn’t work,” he said, so it’s important for his upper torso to get all the exercise it can — plus, he’s got to “stay away from McDonald’s,” he quipped.

He travels in the early morning, usually, and his daughter, Michelle worries about him.

“It’s scary to think of him going out at early hours, all by himself,” said Michelle, who is 21 and home for the summer before her senior year at the University of Washington, where she’s studying international relations and Latin America. She came along when her dad toured his version of the sidewalks with The Columbian.

“Dad, your foot,” she reminded him once, and Magaña looked down to discover one foot had slipped off its footrest. Because he can’t feel his feet, he doesn’t know when they’ve been shaken out of place.

Shifting liability

Who’s responsible for the sidewalk? It may seem like a legal gray area, but it’s not at all gray to local governments: You are.

A 2012 “What’s Up With That?” column quoted Vancouver assistant city attorney Linda Marousek spelling it out plainly.

“(W)hen a sidewalk or street is dedicated as a public right of way, as almost all local sidewalks are, the local government becomes the owner of a sort of ‘supereasement’ that gives every property right to the local government,” she said. “Sidewalk ordinances do typically impose the maintenance obligation on the abutting property owner.”

In other words, sidewalks are generally private property that are dedicated to public use, so local governments require their owners to keep them in good shape.

Magaña’s voluminous complaints resulted in letters from Bjerke going out to three property owners. The letters, all dated April 2, certainly warn of potential hardball: “It is required by city ordinance that the property owners correct such a hazard as soon as possible to protect the public.” “Under Vancouver Municipal Code … failure to comply may result in the city correcting the hazard and billing owner for costs.” And: “It would be preferred to find a remedy for this situation and avoid referring this issue to the city attorney.”

But Carlson said he couldn’t recall any time when the city did crack down or lawyer up over sidewalks.

Of the three property owners who received those letters, Callahan said, “One fixed the problem almost immediately. The other has called a couple of times, getting more information. That’s a business building. The third, to the best of my knowledge, has not repaired it or contacted us.”

The real effect of legal notices that underline the property owners’ responsibility for sidewalks is to limit the city’s liability, Carlson said.

“We put them on notice, protecting the city from liability,” he said. “Essentially, we have shifted that liability. That’s the vast majority of how this works.”

Carlson said the city will hire a new transportation director soon. Within a year or so, he expects to see a new strategy developed for fixing sidewalk problems.

Construction issues

Most of Magaña’s complaints have been about existing, aging sidewalks. A few were about construction zones where ongoing work stymied his progress completely. When he reached Mill Plain, he expressed extra ire about the city’s upgrade of that major east-west thoroughfare — because planners didn’t stagger the work so one of the sidewalks, either north or south, was always passable. Both sides were completely blocked until he complained, he said. A gravel bed was installed on the north side as a temporary measure, but it wasn’t long before Magaña’s caregiver spotted another man in a wheelchair who was stuck in that gravel. Two people had to pull him out, Magaña said.

Similarly, The Columbian recently heard from a disabled Hazel Dell man who complained that the busy intersection of Northeast 99th Street and Seventh Avenue — McDonald’s and a Park-and-Ride to the south, Bortolami’s Pizza and low-income housing to the north — was impassible to him because of simultaneous construction on both sides of the street. Without steering his wheelchair into traffic, he said, he couldn’t make it east to WinCo Foods to buy groceries.

Callahan said builders are supposed to stagger their work — this side of the street, then that side — but construction is a messy and uneven business. The ADA specifically allows for “isolated or temporary interruptions in service or access due to maintenance or repairs being made.”

Magaña recalled a run of lawsuits against local governments and businesses filed late in the last decade by a Camas woman named Michelle Beardshear, who worked with Access Now Inc., a Florida nonprofit that routinely targeted noncompliance with the Americans with Disabilities Act. Some saw Beardshear as a hero for the disabled who got results; others thought her lawsuits wound up padding lawyers’ bank accounts while hurting cash-strapped public agencies and small businesses.

“I could sue,” Magaña mused. “But I prefer education to litigation.”