What is an undue burden? It is an administrative burden, or an economic burden, in light of all resources available. For example, if a mid-sized agency faces a cost of $1,100,000 for transition plan structural change projects, when compared to an entity's $500,000 annual capital budget, and if the agency is subject to a property tax cap, this situation may indeed be an economic burden because it cannot be met without a substantial adverse impact on other agency operations.

An undue burden can also be a change which would result in a fundamental alteration in the nature of a program, service or activity. An example here might be a request to place a blacktop surface for accessibility in the sand volley-ball court. Sand is an integral part of sand volleyball, and a change to the surface eliminates the uniqueness of this sport.

The dollar amounts used above are provided only as examples. There is no hard and fast ratio, as each undue burden decision is individualized and based upon cost, resources available, benefit, and other considerations.

One constant remains, however. The ADA regulations REQUIRE a writing signed by the "head" of the agency whenever an undue burden is determined (see section 35.150 (a) (3) of the title H regulation published July 26,1991 in the Federal Register (28 CFR Part 35)). So for Illinois park districts, forest preserves, cities, and counties which will not make all structural change occur by January 26, 1995, you must support that decision by a memo which describes why completion by this date is an undue burden. This is a real life lesson learned by the city of Manhattan, Kansas, in a recent federal court decision. Tyler v. Manhatten (849 F.Supp 1429).

It is suggested here that agencies in this situation complete the writing requirement now, instead of waiting until a complaint is filed. While each entity should make the writing reflect its unique circumstances, the following draft memo serves as a guide to the completion of this requirement.

This should only be a part of any district's effort to comply with the ADA. See local counsel for further advice on this risk management issue, or ask your risk manager for more information.

TO: File
FROM: Pat Jones, President or Executive Director, Green Acre Park District
SUBJECT: UNDUE BURDEN
DATE: January___,1995

Our ADA transition plan identified deficits in our existing facilities and areas which made the programs, services, and activities within those facilities and areas noncompliant with ADA requirements. To make the programs, services, and activities within those facilities and areas accessible, the District has identified a number of projects, which total an amount estimated at $__________.

The funds available for these projects are severely restricted because of (limitation on property tax levies, unavailability of funds because levies are at maximum allowable rate, or some other objective reason). The District is (describe the priority of transition plan work, e.g., plan projects the highest priority next to [name specific development projects], making transition plan projects equal in priority to acquisition of new sites or development of already held sites).

The District has a capital plan in place and has already allocated funds in the amount of $______ for projects in the plan. The District is (adhering to that plan, or reallocating funds from that plan to transition plan projects). Without the passage of a referendum for these projects, there are not sufficient funds for these projects. Without new revenue, completing these projects at the expense of other Park District operations would have an adverse impact on existing or planned projects.

Therefore, the District believes that it would be an undue economic burden to fund the completion of all the transition plan projects before January 26, 1995. The District will complete the projects in the transition plan, based upon the schedule below.

16 • Illinois Parks & Recreation • November/December 1994

DATE: ACTIVITY

To date: Describe projects completed up to date of the memo.

By 1/26/95 -- Complete (describe projects by reference to plan, e.g., all pavement and signage work, or all work at swimming pools, or all work at community centers and golf course, etc.) with the use of $______ in funds to be levied by the Park District.

By 1/26/96 -- Complete (describe projects by reference to plan, e.g., all pavement and signage work, or all work at swimming pools, or all work at community centers and golf course, etc.) with the use of $______ in funds to be levied by the Park District.

By 1/26/97 -- Complete (describe projects by reference to plan, e.g., all pavement and signage work, or all work at swimming pools, or all work at community centers and golf course, etc.) with the use of $______ in funds to be levied by the Park District.

(Author's Note: This schedule should last for as long as needed to complete projects, but should be for the shortest period of time feasible.)

The Park District has worked diligently to comply with the ADA and recognizes the value of the transition plan projects. If circumstances arise which allow the District to accelerate the completion of projects in the transition plan, the District will do so. Should circumstances arise which require the district to reduce or slow capital expenditures, the transition plan projects will be affected to the same extent other capital projects are affected.

ADA compliance guidelines are being addressed by court and administrative decisions on a regular basis. Look to Illinois Parks & Recreation and other association activities and publications for more information.

John N. McGovern, J.D., C.T.R.S. is the Executive Director of the Northern Suburban Special Recreation Association (NSSRA). *

Illinois Parks & Recreation • November/December •1994 17