Update on June 13, 2016: Waverley Station will remain open as is for 10 years
I today received notice of the recent formal decision by the Architectural Access Board giving the MBTA a 10 year time variance for the improvement of the Waverley station. The AAB is allowing the MBTA to place a higher priority on accessibility improvements at more heavily used stations. The Waverley station will be allowed to remain open as is during this 10-year time variance period. Click here to read the AAB’s decision letter.
Update on March 25, 2016: Waverley Station likely to remain open
I met today with MBTA General Manager Frank DePaola about the future of the Waverley Station.
He explained that MassDOT and the MBTA are well along in their capital planning process. In a recent presentation about the overall MassDOT capital plan (at page 21), MassDOT announced the intention to spend $150 million on accessibility upgrades for the MBTA:
Having completed accessibility improvements at designated key stations, the MBTA has launched its Plan for Accessible Transit Infrastructure (PATI) to identify the next generation of accessibility investments and $150 million is proposed to fund both design and construction work at specific stations as the PATI work advances.
The specific project list has not been released, but the General Manager indicated that Waverley would not be on the list — other stations that are more heavily used are clear higher priorities for access improvements.
The General Manager indicated that the MBTA will be seeking a “time variance” from the Architectural Access Board — keeping the accessibility upgrades of the station on the long-term to-do list, allowing the station to remain open and hoping to reach it as a project in the future. If the AAB allows this variance, the station will remain open. Given the large investment that the MBTA is making in accessibility, it would be reasonable for the AAB to allow the variance.
How is it that a $400,000 maintenance investment by the MBTA in the Waverley station could trigger an obligation to spend tens of millions to make the station fully accessible, or in the alternative, to close the station?
Background — the Architectural Access Board
In 1967, Massachusetts led the way on disability access by creating a board with the authority to make regulations to assure that construction is attentive to the mobility needs of all. The subsequent national Americans with Disabilities Act of 1990 is a much broader civil rights law which requires non-discrimination in construction (although it does not specify a detailed building code).
The Massachusetts board’s original scope and its first set of regulations were limited to buildings constructed by the Commonwealth and its cities and towns with public funds. In 1971, the legislature broadened the board’s authority to cover privately-financed buildings open to the public and also, specifically, transportation terminals.
In the 1986 revision of the board’s authority, the legislature gave the board its current name — the Architectural Access Board. Under its current statutory authority, the AAB has promulgated a full set of construction regulations that is, by law, incorporated as a part of the state’s building code.
Local building inspectors are the first line of interpretation and enforcement for the AAB’s regulations, as they are for the rest of the state’s building code. However, the AAB will directly hear applications for a variance from the regulations and also complaints from persons who feel that the AAB’s regulations have been violated. The AAB has a small staff and a considerable backlog.
Applicability of Architectural Access Board Rules
The AAB’s current enabling legislation is silent on the question of when maintenance or partial remodeling work will trigger an obligation to make an entire structure accessible. The AAB has, by regulation, decided that an owner must make a building fully accessible if they do work costing more than 30% of the “full and fair cash value” of the building, defined to exclude the land it sits on.
The full and fair cash value is generally to be determined by reference to municipal tax assessment records — which are based on market value. The regulations do allow the Commonwealth of Massachusetts, which has a computerized inventory of its structures, to use the replacement cost, as appearing in that inventory, instead of assessed market value.
By law, the AAB’s rules apply to transit terminals. However, the AAB has not developed a specialized value computation for MBTA transit terminals as it has for Commonwealth buildings. The AAB applies municipal market value assessments in determining whether transportation terminals should be upgraded.
Clearly, this methodology needs to be reevaluated. There is no market for transit terminals and therefor municipal assessors cannot compute a meaningful market value for them. Further, assessors have no incentive to carefully value transit terminals since they are tax-exempt. So, the valuation is more or less arbitrary and may tend to be on the very low side as compared to the actual replacement cost of the terminals. It would be much more reasonable and consistent with the AAB’s general philosophy — which is not to trigger a full reconstruction obligation in the case of minor improvements — to use some kind of replacement cost concept.
However, so as to minimize value manipulation and litigation, the AAB has chosen to use independent records with pre-assigned values as the basis for its decisions — either municipal assessment records or the Commonwealth’s building inventory. Conceivably, as the MBTA continues to strengthen its capital planning process, an acceptable published value metric could become part of a new methodology for AAB decision-making about transit terminals.
How the Architectural Access Board applied its rules to Waverley Station
In Feburary 2013, the AAB ruled that MBTA improvements to Waverley Station triggered an obligation to make it fully accessible. In July 2013 the AAB made a separate determination that a variance from AAB regulations should not be granted in that reconstruction.
In both of these rulings, the AAB found it should order a full reconstruction based on the station value appearing in Belmont assessment records. One can view the parcel map for the town of Belmont online. The relevant parcel is 520 Trapelo Road and one can also view the assessment record for that parcel online. The Assessors in Belmont had assigned a value of zero to buildings on that parcel and $44,000 to the parcel as a whole in 2012.
The board stated in its 2013 ruling:
The Board established jurisdiction pursuant to 521 CMR 3.3.2 which states that, “[i]f the work performed, including the exempted work, amounts to 30% or more of the full and fair cash value (see 521 CMR 5.00) of the building the entire building is required to comply with 521 CMR.” Since the cost of the work performed amounted to $353,280.71 and the value of the facility at the time was $44,000.00, the work performed exceeded 30% of the full and fair cash value of the facility, therefore requiring that the entire facility be brought into compliance with the applicable requirements of 521 CMR.
In fact, according to the assessors’ records, the value of the buildings on the property were zero, not $44,000, as the board stated. The board should probably have referred to its regulation 3.8 which allows it to consider the entire land value when reviewing outdoor facilities. Either way, that stunningly low valuation is a great illustration of the need for reconsidering the AAB’s approach to valuing transit terminals. Even the smallest repair job at the station, costing 30% of $44,000 or $13,200, would trigger an obligation to spend millions, based on this methodology.
At first glance, it is surprising that the MBTA’s attorneys conceded the valuation at $44,000. However, it appears unlikely that they could have made an alternative presentation that would have led to a different outcome for the following reasons.
- If the attorneys had argued that “no assessed value exists”, given the zero valuation of the building, the board would have properly turned to the land value which clearly does exist, although it appears wildly low.
- If the board nonetheless agreed to an alternative appraisal by a certified appraiser or professional engineer (which the regulations do allow for transit facilities when no value exists), the board would still have been working with a market value concept under its regulations. Given the odd shape of the property, its location in the middle of an intersection, the fact that the property is zoned as a parking lot and the fact that to use it fully, one would have to bear the expense of air rights construction, the market value might be, in fact, near zero. Since the work cost $353,280.71, the appraisal would have to be roughly $1.2 million or more to avoid the full reconstruction obligation.
- Even if the property were appraised at that level, and the board found no full reconstruction obligation, the MBTA would have an obligation to comply with AAB regulations in the work it actually did. The MBTA did, in fact, arguably violate the AAB’s regulations in how it did the work it did: It repaved the platform, but did so at ground level, in violation of AAB regulations for transportation terminals which require level boarding.
- If the MBTA had complied with AAB regulations in the platform reconstruction, the cost of even that limited work would have gone up considerably. The property valuation necessary to avoid a full reconstruction would have been proportionately higher and almost certainly far above any reasonable market valuation of the facility.
- In fact, the cost of compliant platform construction might reach 30% of the cost of a full reconstruction of the facility, so that even under a replacement cost methodology, the AAB might have reached the same conclusion — but that is a merely theoretical issue since the then applicable regulations did not allow a replacement cost approach.
- Finally, even if the work were found to remain below the 30% threshold, the regulations require that if work exceeds $100,000, then accessible entrances must be addressed and that is the issue that drives most of the cost in a reconstruction anyway. The board’s regulations do provide an exclusion for projects under $500,000 in “underground transit facilities”. However, although Waverley is below grade it is not underground and, in any event, this exception is understood by the MBTA to be applicable to track and signal work as opposed to terminal work per se.
When, after the order finding that regulations required reconstruction, the MBTA came back seeking a variance from the regulations that would allow it to avoid a full reconstruction, the variance was properly denied. The standard on a variance is defined by statute.
[I]f the board determines that compliance with [its] rules and regulations is not feasible technologically, or would result in excessive and unreasonable costs without any substantial benefit to physically handicapped persons in a particular case, it may provide for modification of, or substitution for, such rule or regulation.
Certainly, elevator or ramp access to the station is technically feasible and, although expensive, would provide substantial benefit to physically handicapped persons (facilitating otherwise impossible access) — neither prong of the variance language appears to offer relief.
It does appear clear that the AAB followed the law and its own rules and further that a similar outcome would have been reached even with reasonable modifications of those rules. Regardless, the time for contesting the issue is long past. The law allows appeal of AAB decisions to superior court, but only within 30 days of the decision.
The MBTA violated AAB rules and the outcome of the AAB’s decision in response to complaints was more or less inevitable. Had the MBTA gone to the AAB before undertaking the work, it might have been able to work out an approach that provided some benefits to persons with disabilities at a lower cost. But the work was undertaken during the recession in the rush to put federal stimulus funds out the door.
The AAB’s reasoning in the case does illustrate the need to reconsider the valuation methodology for transit facilities. Applied rigidly, the methodology would make essentially any repair trigger a full reconstruction. Given the central importance of access to transportation for people with disabilities, it does make sense to set a low threshold, but the current methodology makes even minimal repairs legally risky and, when violations are found, may force large investments in stations that have low overall utilization (by people with and without disabilities). A better methodology would be based on replacement cost and create a mechanism for transferring reconstruction obligations to higher utilization stations.