DISABILITY COMPLIANCE BULLETIN®
on Significant Case Law, Analysis and Trends
VOLUME 35, ISSUE 5 September 13, 2007
ADR after settlement puts
accessibility plan back on track
What can be done
when remedies under a consent decree stop moving forward, but the organization
does not want to step back into litigation mode? In the case of Advocates for
Disabled Americans, et al. v. Township of Middleton, No. 04-3030 (D.N.J. revised
consent order filed 08/01/07), the answer was a revised consent decree that
provided for the same remedies but added specificity to the prior agreement
and additional enforcement mechanisms for timeliness.
In 2004, Advocates
for Disabled Americans, a Leonardo, N.J., advocacy
group, and two individual plaintiffs, Carolyn Schwebel of
Leonardo, N.J., and Carmena Stoney of Cliffwood, N.J.,
sued the Township of Middleton, N.J., alleging that
the township's lack of an ADA transition plan, as well as its inaccessible city
hall, libraries and parks, violated Title II and Section 504.
In February 2006,
the parties agreed to a consent order specifying that the township would make
the required renovations and adopt an appropriate
By February 2007,
the promised transition plan had not been adopted by the township. The parties
turned to retired New Jersey Superior Court Judge James
D. Clyne of Benchmark
Arbitration Services LLC. Judge Clyne used both arbitration and mediation techniques
to achieve a secondary settlement.
“At first I was
concerned about arbitration, but this took less time than going back to
litigation," said Schwebel. She said that the judge helped frame the
dispute as a need for timelines and penalties, instead of focusing on monetary
damages. The judge helped the township understand that it needed to start with a
transition plan, then make renovations.
arbitration and mediation, the parties agreed to an additional consent order.
This order requires the township to meet smaller milestones by specific dates
and requires progress reports every
60 days. The township will incur a $10,000
penalty for any missed milestone. The township also agreed to pay $45,000 to the
plaintiffs for damages and attorney's fees.