For at least two years, Big House won’t be biggest

The Michigan Paralyzed Veterans of America agreed to drop the lawsuit in return for a commitment from the University to add more wheelchair-accessible seating and make changes to stadium facilities like bathrooms and ramps to bring them into compliance with the Americans With Disabilities Act. The group was joined by the U.S. Department of Justice, which signed onto the lawsuit as a co-plaintiff in November.

The $226 million stadium expansion project, which will add structures containing luxury boxes and club seating, will not be affected.

Before construction on the expansion project began in November, Michigan Stadium had 92 wheelchair-accessible seats, all of them located behind the north and south end zones.

The settlement, filed as a consent decree in federal district court, requires the stadium to have at least 329 wheelchair-accessible seats when the renovation project concludes in 2010. That figure includes 96 wheelchair-accessible seats and companion seats to be added by the start of the 2008 football season in late August.

The University denied any wrongdoing in the consent decree.

The various adjustments to the stadium will cost about $2 million, according to Gloria Hage, the University’s interim vice president and general counsel.

Because wheelchair-accessible seats take up about 12 times as much space as normal seats, the changes will also drop the stadium’s seat capacity from 107,501 to an estimated 106,201 for the 2008 and 2009 seasons. That will make Michigan Stadium the second-largest football stadium in the country after Penn State University’s Beaver Stadium, which holds 107,282.

University officials said they don’t know what the stadium’s capacity will be after the expansion project and said they don’t know whether it will again become the biggest. The project will add a total of 5,100 seats, but some of the stadium’s existing seats will be removed to make room for the addition.

The pre-settlement project estimate said the stadium’s capacity by the conclusion of the project in 2010 would top 108,000, an addition of 500 seats from the start of the project. But because today’s settlement will remove an estimated 1,500 seats from the bowl, it’s unclear whether that will be enough to make Michigan Stadium the biggest again.

“Over time, we again expect to have the largest capacity of any stadium in the country,” Hage said. “We have to wait until 2010 to see how the new seating shakes out.”

The settlement also requires the University to renovate a total of 20 bathrooms over the next three years so they comply with ADA regulations, designate handicapped spaces at nearby parking lots, provide shuttles from these lots, train all ushers how to assist disabled people, begin actively marketing football tickets to disabled fans and make sure that gameday amenities like ticket offices and concession stands are accessible.

Lawyers on both sides of the table said they were happy with the outcome of the settlement.

“All of the parties approached these discussions with the spirit of compromise,” Hage said. “We’re very, very pleased that we were able to reach an agreement.”

NO LONGER THE BIG HOUSE?

Most students interviewed said they were disappointed but understood the need for the settlement upon hearing the news yesterday.

Engineering senior Steven LaForest said he agreed that the stadium was unwelcoming to disabled fans. He said attended a football game last year with his brother, who needed to use a wheelchair because he had injured his ankle. They found it was hard for his brother to get to his seat and to the bathroom, LaForest said.

“It’s unfortunate that we aren’t the biggest anymore but I don’t think we should let our need to be the biggest stadium get in the way of disability necessities,” he said.

Some students were frustrated about the settlement because the University had frequently said through the approval process for the renovation project that it wouldn’t affect the stadium’s capacity.

Engineering graduate student John Nanry said he thought the Big House “might lose a bit of its personality if it’s not the biggest,” but added that Penn State’s Beaver Stadium already felt bigger because it traps sound better than Michigan Stadium.

Richard Bernstein, an attorney for the Michigan Paralyzed Veterans, said the University had to make the unpleasant choice of either sacrificing the stadium’s accessibility, its status as the largest stadium, or the planned luxury boxes. If the University wanted to add wheelchair-accessible seats but remain the largest, for instance, it could have chosen to add more rows of seating to the top of the bowl, but that would blocked the construction of luxury boxes.

He said the University initially intended to maintain the Big House’s size while building luxury boxes at the expense of accessibility.

“They couldn’t be the largest, be ADA-accessible and have skyboxes all at the same time. They could only have two,” Bernstein said. “They made their decision when they decided to put in their skyboxes.”

University officials including Athletic Director Bill Martin have said the revenue from luxury boxes will eventually recoup the cost of the project. He has maintained that the Athletic Department chose to add luxury boxes because it was the only plan that could improve the stadium’s accommodations for all fans without losing money.

BEHIND THE SETTLEMENT

The settlement resolves a yearlong dispute over the Americans With Disabilities Act that eventually dragged the U.S. Education Department and Justice Department into the fray.

The plaintiffs argued that the University had failed to follow ADA rules, which require that public venues like Michigan Stadium make 1 percent of seats wheelchair-accessible and disperse those seats throughout the venue.

Because Michigan Stadium was built in 1927, 65 years before the ADA went into effect, it would be exempt from those regulations until it underwent what the ADA calls an “alteration.”

The plaintiffs argued that the stadium had undergone a significant alteration in the form of projects like concrete replacement; University lawyers said those projects should count as “repairs,” which don’t trigger those requirements.

The Michigan Paralyzed Veterans threatened to sue in late 2006, after the University moved ahead with plans to renovate Michigan Stadium. Michael Harris, the group’s deputy executive director, said at the time that the University’s plan to add 76 wheelchair-accessible seats to the stadium wasn’t enough.

After months of increasingly vocal disapproval, the group filed suit in April 2007 in an effort to push the University to modify the stadium renovation plans. But the University Board of Regents voted to approve the final construction plans for the project by a 6-2 vote two months later.

In late October, after negotiations between the University and the Michigan Paralyzed Veterans failed to produce a compromise, the U.S. Department of Education sent a letter saying the University had violated the rights of disabled fans and threatened to refer the case to the Justice Department or withhold funding if the University didn’t repair those violations. The letter, which outlined the findings of a 15-year investigation into Michigan Stadium, said the stadium didn’t have enough wheelchair-accessible seating and criticized the accessibility of stadium facilities, including bathrooms, concessions, merchandise stands and parking lots.

After a series of letters back and forth, the University offered on Nov. 19 to add removable platforms to the stadium that would add as many as 300 more wheelchair-accessible seats. That was two days after the last game of the regular season and one day after construction workers broke ground on the expansion project by building fences around the construction site.

The University’s proposal didn’t pass muster with Department of Education, which referred the case to the Justice Department the next day. The Justice Department successfully joined the case as a co-plaintiff a week later and began sending investigators to document the stadium’s level of compliance.

For the next three months, the debate went behind closed doors, with lawyers for the veterans group and the Justice Department discussing a settlement with the University.

The case was scheduled to go to trial this fall, but it never got that far.

FEDERAL INVOLVEMENT

Bernstein said the Justice Department’s intervention was key to the veterans group’s ability to broker a settlement.

“The DOJ made the case,” Bernstein said. “They’re like superheroes. They come in, do incredible work, and then they leave. They were the key, and that can’t be disputed.”

He said he thinks the agreement will cause reverberations that are heard far beyond the confines of the Big House.

“This is going to create greater access for people with disabilities all across the country,” Bernstein said. “It sends a very important message to all developers and people in real estate that if you take an existing structure and you alter that structure, you’ve got to bring it up to ADA code.”

Although the Big House settlement doesn’t set a legal precedent because the case never went to court, it could steer the way other colleges and developers undertake construction projects.

Minh Vu, an attorney who specializes in ADA litigation, said there’s very little case law explaining the difference between alterations and repairs, meaning developers have been responsible for interpreting the law themselves and acting accordingly. Vu, formerly the counselor to the Justice Department’s assistant attorney general for civil rights, said this case is important because it shows what the Justice Department expects from developers.

“The settlement is not binding precedent for anyone, but future litigants will certainly look at that document for guidance as to what the law requires,” said Vu, a partner at Washington, D.C. law firm Epstein, Becker & Green. “You now have a public pronouncement on what the DOJ’s position is.”

For the next several years, the Justice Department will monitor the University’s progress in making the required changes. In 2011, it will decide whether the stadium is accessible to disabled people or needs further work.

Bernstein said he’s confident the problems cited in the settlement will be resolved.

“We look at this as a wonderful win-win and a very positive outcome,” Bernstein said. “When we reconvene in 2011, we’ll be able to see how things go from there, but we have a long time until then.”

No Longer the Biggest House

The settlement means the University will have to turn some bleacher seats into wheelchair-accessible seating. That change means Michigan Stadium won’t be the largest football stadium in the country for at least two years.

107,501: The capacity of the Big House up until the 2007 football season.

106,201: The capacity of the Big House for the next two football seasons.

107,282: The size of Beaver Stadium at Penn State University. Currently the second-largest football stadium in the country, it will overtake the Big House until at least 2010.