Travis County Commissioners Court
November 7, 2006
Item 18
Do you want to pull 18?
>> I just would like to have another week on -- we may want to lay it out. There's a lot to the sidewalk deal and there are a number of folks that I know that really need to look at the numbers be. Do you want to lay it out today?
>> joe gieselman, I asked that question when the item came up and was told that the home builders may think this is a lot more urgent than i. On number 18, that's the sidewalk standards item, you heard Commissioner Daugherty?
>> no, I was coming in.
>> joe, what I was telling the judge is that talking to a couple of folks yesterday, we're certainly moving in the right direction with this thing and they're in agreement, although I don't think we've had a general meeting with everybody since maybe the first quarter or the beginning of the summer, and some of them would like to make sure that some of the number are okay with them, but I told them, I said I think the court and you all certainly want this thing done, so if we don't get it done in the next week, we certainly are going to get it done moap fly before thanksgiving -- hopefully before thanksgivingment.
>> I think it's important that we lay it out today because there are some areas where there's just not a whole lot of give. And I think we need to understand where those points are.
>> those points that I made yesterday to you -- not to you, but to anna, and I think she relayed those concerns.
>> I think we need to get those on the record.
>> I think those need to be part of what we're doing here. I don't want to excuse that at all from this process.
>> we will call that item up this morning.
>> thank you.
okay. Number 18 is to consider and take appropriate action on a proposed policy and program in the construction and remediation of sidewalk in conformance with the american with disabilities act and the Texas accessibilities stz.
>> good morning. With me are anna bolin and jesus (indiscernible), who is -- was with the city of Austin when we started this process and is now in private practice. And of course tom has joined us. We -- the last time we visited with the court on this subject was several months back, actually quite a few months back. And we had -- we were moving in the direction of basically the county granting variances where it was not possible for the development community to construct sidewalks to the state standard and the federal standard. And you need to understand that the law, the state law was rewritten in such a way that privately constructed sidewalk like those in subdivisions are not subject to the state review any longer. It doesn't change the law with regard to those sidewalks, just means that the jurisdiction of the state is -- doesn't apply. The dilemma for the county is that as soon as the county accepts those sidewalks, the law does apply and it's full force and the state has jurisdiction. So the minute the county goes out there to overlay those roads, if you have sidewalk that were constructed and did not comply with the standards, we would have to go in there and retrofit them to make sure that they conformed to the standard. So it was like, the private industry got out of the jurisdiction, but the county still did. So we still have the same dilemma we had. We met with the state, the state agency that's responsible for this law, and they clearly said that the county will be responsible for these sidewalks when they accept them. So we started to rethink about the whole notion of variances. Yeah, we could grant variances, but it wouldn't do us very good when the state took back jurisdiction because they come right back in our face and say nope, these things need to be constructed as the law says. So that is a significant change from where we were headed originally. We believe that there's certainly -- it's already occurring. I think the industry is doing a much better job of designing sidewalks that do comply with the law in all form and fashion. So that's a plus. I think we need to continue in that direction of requiring the engineer of record, which is the engineer working with the developer, that they be fully informed about the standards of a.d.a. And taiso that they start the process from the very moment they start writing out the roadways they are thinking about how the sidewalks are or are not going to conform to the design standards set out by the law. We also thabl as design reviewers, the county needs to be in the same position. That we may need to have our staff fully informed and certified quite frankly as inspectors to make sure that we understand how these sidewalks are being designed, and we can comment on those designs just as if we were working for the state agency. And so when we presented to the Commissioners court a subdivision plat, we not vonl the yirn who sealed the plan, but also the reviewer and the county and the tnr staff saying yes, these sidewalks do comply. So that we don't get into a position of accepting construction plans that are not conforming. The second part of this then is getting those sidewalks constructed to meet the standard. We believe that -- where we were headed originally in the policy is a good direction, and that is that the home builders have as much responsibility for meeting the a.d.a. Standards as the developer. Quite often it is the home builder not the developer that built the sidewalks that are nonconforming. We is -- the developer typically will come in, lay out the streets, build the common area sidewalks and then the home builder will come behind and build the sidewalks within the lots. And a lot of times that's where we have the problems. It's where those sidewalks cross the driveways to the house that creates conditions that do not conform to the standards. So we believe by migrating the permitting, the county's permitting to the home builder for those type of sidewalks will help us bring compliance. So that when they come in for a building permit, that would also include a driveway permit, we would have an opportunity to review what they're doing with the sidewalk at that time and say look, remember, you're a home building and whoever is building your sidewalk, typically a subcontractor, needs to understand what the slopes need to be and how to build the driveways in such a way that have you a sidewalk system that meets the standards. And we would hold a fiscal separate from the developer's fiscal for the subdivision, we'll hold a fiscal from the home builder that we can use as a means of rectifying if the builder chooses not to do it. Just like we do on the subdivisions, we hold a fiscal in the event that something happens and we end up having a subdivision that's not built to officed. We have the wherewithal to go in and pull fiscal, go out there and get the job done. We'll have the same capability if we change our policy to do that with sidewalks. We prefer not to do that. We prefer that they build the sidewalk in the first place and we just give their fiscal back and we're on down the road. That would be the objective. That change in policy, you understand, creates a much larger transaction cost for us. Now instead of having one developer post-fiscal for the entire subdivision, all the sidewalk in the subdivision, we will be having a fiscal only for the common area sidewalks from the developer. And then we'll need a separate fiscal from every home builder within that subdivision, which means every lot perhaps. Typically that's not the way it's done. Usually there's one home builder or maybe half a dozen home builders in a large subdivision, so you may have 100 lots, that doesn't mean you will have 100 home builders. You will probably have five home builders who will come in and seek permits in blocks of lots. So I think that -- but nonetheless we are talk being a piece of paper for every lot in the subdivision that will have attached to it a fiscal for the sidewalks. And the fiscal wouldn't be released until the sidewalk is built to standard. And also we would require that the -- that the builder and/or the developer continued to get a checkoff from the -- what's called the ras, the registered accessibility specialist is the term of the profession. And these individuals are certified by the state to look at these improvements to say -- to make a determination that they do or do not meet the standard. We would continue to require the developer and the home build stories have that certification and present it to the county as a condition for release of the fiscal. We're not staffing up at the county to go do that job. We're relying on the industry that's already in place to do that for us. That is a cost to the development community because they have to pay that ras for the inspection. Then we have the whole issue of those subdivisions that are already built and have sidewalks that are non-compliant. Again, we're not recommending to the court that we grant any variances and say okay, we're going to somehow or another we think they can comply with the law. They don't. So both -- if we choose then to accept the roadway in the condition with the sidewalk and the condition that are non-compliant, we're recommend to go the court that at least we get a remediation fee from the developer that would help offset the cost of remediation if the day comes where the state agency says, you know, county, you're going have to go in and retrofit that sidewalk. We may not ever be required to do that, but there is a latent potential that the minute we go out there with a paving crew to put on a seal coat on a road, the state will come and say see all those sidewalks in that right-of-way, they don't comply and you need to retrofit the sidewalks now as you're paving the roadway. We would dip into this account to do that. And so the developer who have these subdivisions that are currently defeated, but not accepted by the county have two choices. They can go in right now and fix the sidewalks so it does meet standard or they can pay the county under this revised policy a fee -- and we would then accept the nonconforming sidewalk. It's basically an nbs insurance policy is what it is.
>> I know you may not be complete with the presentation, but anyway action I guess when you get to the completion let me though throe in those questions. I don't want to interrupt you. You probably have a few more things to say.
>> all right. And as Commissioner Daugherty said, I believe the industry right now is looking at the cost estimates that we prepared. These are my engineers' cost estimate oz what they believe it will take to retrofit and I believe the industry is looking at them to see if they agree. The other part of the policy really has to do with the entire system of county roads that we have had for yeeshz years, decades where we know we have nonconforming sidewalks. And that we have in place a policy and a program that take those sidewalks and brings them in compliance over a period of years. So -- and this is, we believe, good policy just to bring the county separate and aside from the private community and the developer's, bring the county itself closer in compliance with the americans with disabilities act. That we have a program that says we have sidewalks that are non-complying, we have funds dedicated to fix them and we have a program where over a period of years we'll go out and get some of these sidewalk, bring them up to the current a.d.a. Standards. So that part of the policy cial has not change -- really has not changed since we addressed the court back in February. Most of the planning documents, the authorities, the methods, the priorities, all those have remained as we originally recommended. And foat cuss has not been on that as much. I think there's general consensus that that would be good to have. I think most of our discussions has been where we are either recommending how we accept new subdivisions or how we deal with those subdivisions that are pending acceptance but for the non-compliant sidewalks. There is a cost to the county for the policy as is proposed. We would need an additional staff foreign track the fiscals. That is a substantial work load. We propose that that cost be offset by increasing the driveway fee from $21 per application to $40 per application. We believe that ces in fee would help -- that increase in fee would help pay for the position that we'd be needing, which is an engineering specialist. There's also a fairly nominal fee of training tnr staff in the -- to be registered accessibility specialists and that's about $550 per person. And then that's a yearly -- yearly told cost us about $250 a person to keep that license current. And we probably need a minimum of at least two persons on tnr staff to be tas certified. Perhaps one from road and bridge also. I'm thinking perhaps don wheerl would need to have money on his staff since they have crews out there basically going in to retrofit the swawrksz it's important that -- sidewalks, it's important that when they do that it's important that they have someone who can say yes, that's the way to be be built to meet standards. It's not something you can do with your eyeballs. A two percent grade is not something you can see with your eyesment you need somebody out there who can look at it and make a determination that it meets the design standards. I'm pretty much finished.
>> let me ask you a couple of questions. Maybe more than that. But if we go back and look at sidewalks that are non-compliant, the division has already been established, we have not accepted the roads and they've been out there for awhile, and this process I hope if the homeowners or the home builders, are they still required to go back and correct the noncompliance aspect of those sidewalks before we at that time can accept the roads? Who would actually fund that for those particular non-compliant sidewalks that are out there now that exist right now in the subdivision and the roads have not been accepted because we have not -- they have not met the standards?
>> the developer has two options. He can go in there and pay to have the sidewalks retrofitted right now before the county accepts them or under this policy he can pay the county a remediation fee which is behavingly eat quif lent of what they believe the cost twob the county if we accepted them and had to go after the fact and bring them back to standards. So either way the owner of the new developer of the subdivision would end up paying the cost of bringing the sidewalks to standard.
>> even though the subdivision has been developed out?
>> yes.
>> evening though the subdivision has been developed out and the sidewalks are in noncompliance and we do not maintain those roads because we haven't accepted them yet because of the sidewalk issue.
>> yes.
>> the developer there or the homeowner or --
>> the home builder's association. Have we run anything by pment bo to alert them to how much this would be under those kind of conditions, how many roads as the home builder suggested we pet putt in this remediation fee of x amount of dollars. Once we do that you get the sidewalks in, but at the end of the day we accept and put these particular roads into our pavement management system and of course they accept it for maintenance at that time, which also means that there is a cost that will be involved. I don't know how much the cost is. I don't know how many subdivisions, in that particular category that I mentioned right now. I don't know. But however many are in that category, what I'm talking about right now, that will end up being a cost to the county to actually go ahead and maintain those roads. What have we -- have we looked at those roads -- I really don't know if we're looking at roads that are bad, fair or good. I don't really know what the condition of those roads,, I just don't.
>> the roads or the sidewalks.
>> well, I understand. But to maintain those roads, though, once the sidewalk is there we'll have to -- maybe I'm not understanding, but if we don't maintain those roads or don't accept them for maintenance until the sidewalk and everything else is are in compliance. That's what I'm understanding. If I'm wong, somebody tell me.
>> the cost of remediating the sidewalk.
>> the cost of the road. If they're not maintaining the road because of the sidewalk issue.
>> we would accept the roadways and the cost of maintaining those roadways in most cases, the subdivisions are completed and we would accept that as a normal course of business, the cost of maintaining those roads in a current condition. Currently in a brand new subdivision, that's not very costly. If we keep them maintained with seal coats. I guess your question is if there's a length of time, and that would be probably seven to 10 years, where the road remained unaccepted to the point where it started to really deteriorating. Then it could become a lot more costly for the county to accept the roads. I don't have an estimate. Most of these subdivisions we're talking about here are relatively recently completed sidewalk.
>> that was my next point. Is there a cutoff point whereby that may be a separation if there are subdivisions that are out there and the roads have had a chance to deteriorate in a 10-year, 15-year, whatever period it is, that we haven't actually accepted them. Is there a cutoff point that we are looking at in this particular proposal if we can go forward with maybe the newer roads and stuff like that. Is this--
>> cutoff meaning the county would accept it no matter what?
>> yeah.
>> I think if you had that policy everyone would wait for it. If you institute a policy that says, if you wait long enough the county will accept it no matter what, I think everybody would choose that option.
>> cutoff point meaning that for this policy to be implemented upon a particular situation, regardless of age, be is there a cutoff point?
>> I don't have a cutoff point.
>> that's what I was trying to flesh out. So there's still some ambiguity for me right now, and another point is that the home builder, since they will be something new to them I guess as far as a permit is concerned, it's something they have never maybe have had to post fiscal. Home builders, I don't think so. But what are they saying about this? Have we actually met with the home builders and said hey, this is something that you are going to have to deal with as far as this new policy is concerned? Just similar to something we did when we looked at the making sure that subdivision had all of the -- acoring to the number be of lue's that when they built out they had the water capacity to serve those particular subdivisions, just as we went out with those folks in this regard, have the same efforts been made with the home builders asking the same question, how do you feel about something -- such a policy that we're considering before the Commissioners court.
>> we have had representatives from the home builder's association as well as the development community to serve on this stakeholder group that we've been meeting with, yes.
>> okay. And I haven't heard of any disposition because I haven't heard any -- one way or the other.
>> I think that actually their proposal that we split, we not hold the developer accountable for all the sidewalks, but we start splitting that between the home builder and the developer.
>> well, one of my concerns, and I'd like to maybe have more information on it, I don't think it's here today, and I think it's probably a question that would come from other court members, but I don't think it's a bad idea what we're doing. I'dlike to see what the overall financial impact on this would be if wh you really throw neferg everything in the bucket and we actually iron out everything and go in the direction that we're trying to go. What will really be the cost under all those -- under different snare scenarios, some of those I brought up this morning? Roads that are bad, fair, and good. So I'd like to have that information if possible and right now I don't know. Thank you.
>> sir frks we could be get your name and affiliation we would be happy to get your comments.
>> my name is jesus lardizabal.
>> how about just jesus?
>> and I am with a private accessibility consultant.
>> your comments today?
>> I have been involved with this process at Travis County back when I was still with the city of Austin. I was the city of Austin's a.d.a. Program manager. And I'm just providing some technical advice on some of these requirements and provide a little bit -- bring my experience as to the potential impact of changing the technical requirements and how the -- these technical standards should be applied.
>> okay. So are you ready to give those now rite now or give them later in writing?
>> ky do either one. -- I can do either one. I can provide those in writing. I've been doing it in meetings within the committee just providing what I think would be some pitfalls and things that the county needs to look after as far as meeting the federal requirements.
>> okay. Why don't you give us a few of the highlights right now and then a more comprehensive list in writing after today. We'll have this item back on the agenda the 14 its or 21st?
>> your choice. I heard the Commissioner wanted to --
>> why don't we do the 21st. And jesus, bch he tells us this, judge, it is my understanding that jesus has worked along with the subcommittee to date, so what is in here I'm assuming we will be somewhat compliant with the regulations that we need to have and basically what we really need is kind of the signoff from the home builders. And the home builders are the ones driving this because they're the twhawnz have the relationship -- they're the ones that have the relationship with the developers and the home builders themselvesment so I'm pleased with where we've gotten because I think that most of what I've heard is that they are in agreement, okay, here's a plan that we can accept. We do have some question as to whether or not we think the remediation for a removal of a driveway, for example, is that cial $10,000? And I would thai in the next couple of weeks -- the 21st. Let's do the 21st, judge. I think bhi that time we will -- I think by that time we will be able to come back with all the necessary ingredients that we need to make this thing somewhat whole and complete.
>> that's fine with me. Do you want a few minutes for highlights, though?
>> sure.
>> and the importance of that question was that if this item is back on the 21st, then if you get us in writing whatever you have in mind, say in a week, it will give us another week to look at it.
>> okay.
>> now, the other thing is in my view if you speak of a.d.a. Requirements or a.d.a. Standards, it would help to know whether they're preferred or required, especially by federal law. And more importantly required of Travis County by either the state or the federal government. Nou not that we wouldn't try to do the best we can whether it's required or not, but if it's required, that's the minimum that we must do.
>> it's also important -- I keep talking about a.d.a., a.d.a. And it's really two different laws. You've got the Texas law and then you have the federal law. It's important to understand that we have to comply with both of those and they're not necessarily in sync.
>> that's not unusual, joe. Our goal is to try to make sense out of both of them. Both of them bigger than we are. Speaking of required or preferred, our preference would be -- highlight snz.
>> the requirement placed on Travis County is that the Travis County needs to comply with both the a.d.a., the national standard, and the state Texas accessibility standards, the tas. Now, the tas was intended to replace one of the titles of the a.d.a., but Travis County is still subject to both title two and title three of the a.d.a. One of those requirements is that a municipality provide an accessible pedestrian route, which courts have interpreted to mean a sidewalk, throughout their public right-of-way. And that was something that we really -- if really was the lynch pin to a lot of what we were discussing in that the county should not be in a position to grant variances or waivers from either the federal standard or the state standard and it was to basically allow yus the county to look at a case-by-case basis and died where the county can provide -- decide where the county can provide some lean yens. And municipalities can say we're for the going to provide a curb ramp at every intersection; however it can be down where the intersection is still compliant by allowing the completion of one curb ramp. That is what we tried to do is still comply with both federal and state standards, but take advantage of the leeway that each municipality is given in determining how to make that subdivision compliant.
>> okay.
>> jesus, if a subdivision elected not to have sidewalks, does that neent road itself -- does ta mean that the road itself will become the path way in a americans with disabilities, that it would -- the insinuation twhoob have you to use the road. And if you have to use the road, then the road has to be compliant like the sidewalk would have had to have been compliant because the question that I can remember asking fairly oral is that if we're putting ourselves in a position where what -- to where we really can't comply in western Travis County because of so many elevation changes, then okay, then let's just not force the building of sidewalks. But does the state law say that you have to have a.d.a. Compliant movement capability? Is that technically what the state says?
>> it's actually not the state, it's the federal guidelines, they say that you need to provide an acceptable pedestrian route within the public right-of-way. The federal government has not come out and defined what that accessible pedestrian route means. It could be a shoulder on a road as long as that shoulder complies, but most municipalities have interpreted that to mean a sidewalk, whether concrete or asphalt or just some accessible route within the public right-of-way.
>> soco we in your opinion -- so could we in your opinion elect not to force some subdivisions to have sidewalk, and if they didn't have sidewalks, then we really wouldn't have an issue with it?
>> I think in my opinion -- my opinion is that to remove some of that liability from court cases that have happened I would still suggest the building of sidewalk. Within the public right-of-way.
>> and you have requirements that sidewalks be built as part of a subdivision and those sidewalks with subject to the ada. Beyond that the law is not real well developed. The exact scope and nature of the obligation has not been real well defined in the federal yet. Maybe yes, maybe no. The bottom line is this, at da is a nondiscrimination statute. Fundamental obligation is that if you provide sidewalks intended for able bodied people, you have to make them usable by people with disabilities as well. You can't billed something that only able-body people can use.
>> that's understandable.
>> I would say on your suggestion that if you don't billed sidewalks then does the road way become the default pedestrian access route, I think you can argue the roadway is intended for use by calls. An able-body person and a disabled person can both use a car equally on that roadway. That would be the argument at least. But the real answer to your question is we don't know yet because that part of the federal law has not been decided by the federal courts yet.
>> couple of questions. You had mentioned that the Texas accessibility standards and the ada are not necessarily in sync. Is that something where they ought to be in in sync and something that needs to be added to some sort of legislative agenda? Sinks we're fix toss go back sm.
>> there are some states? The country that do not, they have own separate law and do in the follow the ada ada. The ada gives a little more flexibility than the state law in Texas. I don't think there's much chance that the state is going to take back the law that is in place currently.
>> I don't think it's so much as taking it back, but to work on places where there seems to be conflict between where one standard says one thing and another standard says another thing. Everybody wants to make sure that the spirit and the gist of the federal law is absolutely being respected. But when you've got one standard saying one thing and one standard saying another one, it's like heads you lose, tails you lose. Those are the kind of things I'm not talking about taking it back, but to offer some tweaks, flexibility, something kind of something to it so that a municipality or county is not going, what am I supposed to do. Where you don't have good guidance. Just wondering if any thought has been given to tweaks that would make sense and still be respectful of that.
>> I think the state is responding to the federal requirements in that the federal government will make a proposal and allow the community to respond to the proposals. At the same time the state was doing something to match that. The state then adopted those requirements. The federal government said we're going to hold off because we received so much more input. So the state accepted a lot of those requirements and then the federal government has come out with new requirements or proposed requirements. So it's a constant change and leapfrogging and I believe that the state is responding to the newly proposed requirements and trying to narrow the gap and close the gap off.
>> do counties have the same kinds of flexibility or lack of flexibility as do cities?
>> I believe there's no distinction.
>> the same law applies equally to both it's the same law that applies to both. I will ask jesus to confirm this. Sort of the outline is what the city of a a--of Austin is already doing. Correct ?
>> correct? The authority fee, do rehave the legal authority to charge the fee? If we don't that ought to be something added to the legislative agenda because we don't have any inferred power to do anything. That is something that the auditor would ask, based on what state law are we going to charge this ?
>> I think we have the authority.
>> you do think ?
>> current authority.
>> based on? What is it ?
>> subdivision statutes.
>> work for me. Needs to be something we need to be prepared to give to the auditor.
>> we would not dare charge a fee if we were not authorizedwe always ask that question--
>> we always ask that question.
>> in terms of process, have we already given home builders and developers an opportunity to look at what's proposed including the fee ?
>> yes, all of them have copies.
>> okay.
>> and--
>> may I suggest that we give them written notice of an opportunity to appear before us on September 21.
>> you bet.
>> the other question is before we adopt something this significant, we would want to have a public hearing. Now, do we want to have the public hearing on September 21 or after that date ?
>> November.
>> November.
>> I think at this point we're probably queued up all right for a public hearing on the 2 21st--the 21st.
>> they can come down and express shock, surprise, a amazement, con sternation, et ra.
>> we're going to get that deal done between now and then.
>> yeah.
>> it's kind of a big change a wig departure from--big departure from how we have conducted business. Fees have already generated a lot of interest.
>> yeah, I think there's a wisdom in the Texas two-step two-step.
>> maybe we ought to just have a public discussion on the 21st and public hearing after that.
>> yeah.
>> are we aiming towards implementation towards the first of the year ?
>> sure, that would be fine. These developers are anxious to get their roads accepted by the county.
>> I think that's what, they are acceptable to that judge if we can put this in place by the first of the year.
>> okay. I don't know. The home builders organizations, I know there is one big one. If there's other I would say here is what we are thinking about doing, we're going to discuss. We need youren put on the 21st if you have input to give. Same for developers and same for other who may be impacted one way or the other. You need to let me know before the 14th whether we need to set aside an hour or here and a half.
>> and for the disability community.
>> and we did have a pretty diverse steak homeder er-- er--stakeholder group. They will all get the invite.
>> we would discuss it and then have the public hearing judge ?
>> yeah. That's what I suggested.
>> anything else that we must discuss today? Then we'll have it back on on the 21st and mr. Jesus, thanks for participating.
>> thank you.
>> anna, you didn't say much today, but we heard you loud and clear.
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Last Modified:
Tuesday, November 7, 2006 10:11 PM