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'Developer, advocates meet over Phenix accessibility'



Last modified: Sunday, January 16, 2011
City and state officials are trying to help the Disabilities Rights Center and landlord Mark Ciborowski come to agreement on how to improve accessibility at historic Phenix Hall. But the two sides continue to disagree about what is legally required and practically possible at the landmark downtown building.

"They're tough issues. They're very difficult issues. . . . But my perception is that everybody involved in this is a person of good will and good faith, and is doing the best they can," said Jack Crisp, Ciborowski's attorney.

Phenix Hall, 36-42 N. Main St., opened in 1895 and is listed in the National Register of Historic Places as part of the Downtown Concord Historic District. Owned by Ciborowski's family, it's home to The Works Bakery Cafe, the League of New Hampshire Craftsmen and, upstairs, a 976-seat theater that's been out of use for more than two decades because of code issues.

Ciborowski last year began a restoration project on the building's facade, including removing a black metal covering installed around 1960 and replacing the granite steps up into the Works, the league and a vacant storefront.

That work has set off a debate over accessibility at the building. The Disabilities Rights Center, a Concord-based group, says the construction was significant enough to trigger a provision of the federal Americans with Disabilities Act of 1990 that would require the installation of a ramp or other access for people with disabilities.

Ciborowski disagreed, saying the work was "largely cosmetic," and not enough to count as an alteration to the building, and besides, putting in a ramp or other mode of wheelchair access isn't technically feasible.

The center has threatened to file a federal lawsuit to force the issue, but for now is negotiating with Ciborowski and Crisp to find a solution.

Meanwhile, another Concord-based disabilities-rights group, ABLE (Advocates Building Lasting Equality) NH, received a permit this month from the city for a "protest demonstration" at the building Jan. 23. The permit estimates 30 to 50 people would march to Phenix Hall from the Holiday Inn at 172 N. Main St., where the group is holding a meeting that afternoon.

Linda Quintanilha, ABLE NH's vice president, said no decision has been made yet about whether to go forward with the march, "but we decided in case we wanted to do something, we'd better file the application."

Listed on the protest permit as an organizer is Adrienne Mallinson, a staff attorney at the Disabilities Rights Center. She said she's involved in the possible protest as an ABLE NH board member and not as a representative of the center.

Richard Cohen, executive director of the Disabilities Rights Center, declined to comment last week on whether he thinks the protest is a good idea. But, he said, it's their right to march.

"People certainly have a right to exercise their right to protest and almost every civil rights movement that I'm aware of . . . has used a protest when they feel that their rights are infringed on," Cohen said.

 Talking it out

The disagreement centers on two issues: What the ADA requires, and what's possible at Phenix Hall for wheelchair users to enter the storefronts, most prominently the Works.

The ADA's Standards for Accessible Design state that any alteration, meaning "a change . . . that affects or could affect the usability of the building" including "historic restoration," must "be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities."

There is flexibility in the federal standards for historic structures such as Phenix Hall, allowing alternatives to a ramp or similar addition to be considered if putting one in would "threaten or destroy the historic significance of the building."

Cohen said last week that "it's very, very clear" the construction last year was an alteration to the building entrances, where the stairs were removed and replaced. Crisp disagreed, saying Ciborowski didn't do "anything that affects the usability of the building."

There is also disagreement on whether putting in a ramp or other structure is possible. Ciborowski, a prominent landlord who has renovated a number of historic downtown buildings to include access for people with disabilities, has said he studied the question and decided a ramp wasn't feasible at Phenix Hall.

But Cohen said the center has hired an architect who said access "is totally feasible" using "any combination of things: ramps, lifts" or other options.

To try to bridge their differences, Ciborowski and Crisp sat down Thursday with Cohen and two attorneys from the center.

The meeting was organized, Cohen and Crisp said, by state Sen. Sylvia Larsen, described by Crisp as "a longtime Concord resident who's interested in all the issues." Larsen couldn't be reached Friday for comment.

Also present at the meeting were Deputy City Solicitor James Kennedy, state Commissioner of Cultural Resources Van McLeod and two officials from the state Division of Historical Resources. Mayor Jim Bouley was expected to attend but couldn't make it, Crisp said.

Cohen described the meeting as "constructive" and "very cordial and civil." But no agreement was reached.

"We've explored and are continuing to explore every alternative we can think of and to work with the historic folks and the DRC folks to do what we can," Crisp said.

Both sides said they hope to continue talking.

"We're really committed to working to try to work it through so we can get some agreement without the necessity of judicial action," Cohen said.

But, he said, "I think we're anxious to try to resolve it quickly one way or the other. I don't think it's in anyone's interest to allow this to go on and on."

 Looking for a solution

Within a week or so, Crisp said, a curbside buzzer will be installed at the Works so wheelchair users can alert an employee to come out, take their order and bring them food and drink.

But that's just a "stop-gap," Cohen said.

"It still doesn't allow people to actually enter the premises," he said. "I don't expect people are going to be eating outside in the cold."

Crisp said Ciborowski has looked at the possibility of adding a ramp, which by the ADA code would have to be 14 feet long, or a chairlift or even a portable aluminum ramp that could be put in place as needed.

"Thus far, there haven't been a lot of options that seem to satisfy all the different players," Crisp said.

Cohen said the center, which has presented "two or three different proposals," has encouraged Ciborowski to use an architect "to both weigh our options and even conceivably develop others."

And Crisp noted that Ciborowski plans to create wheelchair access to Phenix Hall's other floors by lowering the lobby's floor to be flush with the sidewalk, allowing access to the elevator.

Various ramp options that would extend into the Works from the sidewalk were explored before the renovation project began last year, but "depending on which architectural drawings you look at, (a ramp) would take away between a third and 40 percent of our seating space," said Don Brueggemann, manager of the Works.

That, he said, "would certainly curtail our ability to seat people" and "significantly impact the business."

But Brueggemann said everyone wants to find ways to increase accessibility at the restaurant.

"This isn't people versus people. As far as this goes, this is people versus an obstacle, and my take is, let's find a way to make it as accessible as we can . . . and not jeopardize the business. That doesn't help anybody. If we're not here, it doesn't matter who can't get in," he said.

(Ben Leubsdorf can be reached at 369-3307 or bleubsdorf@cmonitor.com.)