202 Existing Buildings and Facilities

Advisory 202.4 Alterations Affecting Primary Function Areas.  An area of a building or facility containing a major activity for which the building or facility is intended is a primary function area.  Department of Justice ADA regulations state, "Alterations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area."  (28 CFR 36.403 (f)(1)). See also Department of Transportation ADA regulations, which use similar concepts in the context of public sector transportation facilities (49 CFR 37.43 (e)(1)).

Advisory 202.5 Alterations to Qualified Historic Buildings and Facilities Exception.  State Historic Preservation Officers are State appointed officials who carry out certain responsibilities under the National Historic Preservation Act.  State Historic Preservation Officers consult with Federal and State agencies, local governments, and private entities on providing access and protecting significant elements of qualified historic buildings and facilities. There are exceptions for alterations to qualified historic buildings and facilities for accessible routes (206.2.1 Exception 1 and 206.2.3 Exception 7); entrances (206.4 Exception 2); and toilet facilities (213.2 Exception 2).  When an entity believes that compliance with the requirements for any of these elements would threaten or destroy the historic significance of the building or facility, the entity should consult with the State Historic Preservation Officer.  If the State Historic Preservation Officer agrees that compliance with the requirements for a specific element would threaten or destroy the historic significance of the building or facility, use of the exception is permitted.  Public entities have an additional obligation to achieve program accessibility under the Department of Justice ADA regulations.  See 28 CFR 35.150.  These regulations require public entities that operate historic preservation programs to give priority to methods that provide physical access to individuals with disabilities.  If alterations to a qualified historic building or facility to achieve program accessibility would threaten or destroy the historic significance of the building or facility, fundamentally alter the program, or result in undue financial or administrative burdens, the Department of Justice ADA regulations allow alternative methods to be used to achieve program accessibility.  In the case of historic preservation programs, such as an historic house museum, alternative methods include using audio-visual materials to depict portions of the house that cannot otherwise be made accessible.  In the case of other qualified historic properties, such as an historic government office building, alternative methods include relocating programs and services to accessible locations.  The Department of Justice ADA regulations also allow public entities to use alternative methods when altering qualified historic buildings or facilities in the rare situations where the State Historic Preservation Officer determines that it is not feasible to provide physical access using the exceptions permitted in Section 202.5 without threatening or destroying the historic significance of the building or facility.  See 28 CFR 35.151(d).