## Facts

- Individuals with ambulatory disabilities and a disability-rights organization sued Pennsylvania and Philadelphia officials over the City’s practice of not installing curb ramps at intersections when resurfacing streets.
- Philadelphia generally installed curb ramps only when curb/sidewalk work was performed or when a street was completely reconstructed.
- Plaintiffs alleged that missing curb ramps prevented meaningful access to city streets and sidewalks and significantly impeded mobility in daily life.
- Plaintiffs brought a class action under 42 U.S.C. § 1983, alleging violations of Title II of the Americans with Disabilities Act and implementing regulations.
- The dispute centered on 28 C.F.R. § 35.151(e)(1), which requires curb ramps when a public entity alters streets, roads, or highways at intersections with curbs or barriers.
- The district court ruled that resurfacing is an “alteration” and ordered installation of curb ramps on streets for which resurfacing bids were taken on or after January 26, 1992.
- The City appealed, arguing resurfacing was not an “alteration” and, alternatively, that an “undue burden” defense and its ADA transition plan permitted delayed or reduced compliance.

## Issues

1. Whether resurfacing city streets constitutes an “alteration” under 28 C.F.R. § 35.151(e)(1), triggering a requirement to install curb ramps at intersections with curbs or barriers.
2. Whether a public entity may invoke the “undue burden” defense in 28 C.F.R. § 35.150(a)(3), or rely on a transition plan, to avoid or delay curb-ramp installation when resurfacing is deemed an alteration.

## Decision

- The Third Circuit affirmed the district court.
- The court held that street resurfacing is an “alteration” under 28 C.F.R. § 35.151(e)(1) because it affects the usability of the street for the public.
- The court held that the “undue burden” defense in 28 C.F.R. § 35.150(a)(3) applies to obligations concerning existing facilities and program access, not to alterations governed by § 35.151.
- The court rejected reliance on an ADA transition plan to postpone a specific accessibility requirement applicable to alterations.
- Philadelphia was required to install curb ramps at intersections for streets resurfaced (as measured by bidding) on or after January 26, 1992, and to do so prospectively with resurfacing projects.

## Legal Principles

- Under Title II and 28 C.F.R. § 35.151(e)(1), resurfacing that improves or changes a street’s usability qualifies as an “alteration” and triggers mandatory installation of curb ramps at intersections with curbs or other barriers.
- The regulatory scheme distinguishes between existing facilities (28 C.F.R. § 35.150) and new construction/alterations (28 C.F.R. § 35.151); alteration standards apply when the entity undertakes an alteration.
- The “undue burden” defense in 28 C.F.R. § 35.150(a)(3) does not excuse compliance with alteration requirements under § 35.151.
- A transition plan for program access cannot displace a specific regulatory mandate governing alterations.

## Conclusion

The Third Circuit required Philadelphia to install curb ramps whenever it resurfaced streets, holding that resurfacing is an ADA-covered alteration and that neither the “undue burden” defense for existing facilities nor a transition plan permits avoidance or delay of the curb-ramp mandate.


Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993)