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Suit demands Main Street access



Last modified: Friday, September 16, 2011
After threatening to do so for months, the Disabilities Rights Center has sued the owner of Main Street's Phenix Hall over its lack of handicap access.

The lawsuit, filed yesterday in federal court in Concord, not only names the Jacob S. Ciborowski Trust, which owns the building, but the property's tenants, the Works Bakery Cafe and the League of New Hampshire Craftsmen.

The three plaintiffs, Gina Colantuoni, 27, of Bow, and Concord residents Dean Davis and James Piet, both 49, have cerebral palsy and cannot get into those businesses because they use wheelchairs. On their behalf, the Disabilities Rights Center has asked the court to require the building - including the eatery, League store and a third vacant storefront - become accessible to wheelchairs and other mobility devices.

The building opened in 1895 and is listed on the National Register of Historic Places. There are currently two steps between the sidewalk and the restaurant and storefronts.

Davis said yesterday he enjoys going to the bagel shop to eat and meet up with friends. He gets a ride to Main Street and said he can get into most Main Street businesses with his wheelchair. At the Works Bakery Cafe, he relies on someone else to order for him and he must eat outside. The weather is soon going to make outside dining impossible.

He said he didn't hesitate to put his name on this lawsuit when the Disabilities Rights Center approached him. He'd worked with the center before on a similar lawsuit against Filenes in Manchester. 'I did Filenes. I can do Bagel Works,' he said.

The lawsuit is the latest development in a dispute that dates back a year, when Mark Ciborowski, whose family owns Phenix Hall and several other Main Street buildings, began restoring the property's facade. As part of the project, he removed the black metal covering put on the building around 1960 and replaced the concrete steps with granite steps.

The Disabilities Rights Center maintains that those changes were significant enough to require Ciborowski to make the historic building handicap accessible, as required under the federal Americans with Disabilities Act. The center said the alterations also included new windows and doors, more than simply a cosmetic makeover.

Disabilities Rights Center attorney James Fox said under the federal law, any parts of a historic building that have been altered must be made accessible. But, Fox isn't convinced the building still has historic significance because he said Ciborowski made the changes without consulting an architect or thoroughly researching the building's architectural history himself.

Either way, he said Ciborowski and the tenants are required to add a ramp or otherwise make the businesses accessible to people in wheelchairs.

Ciborowski could not be reached for comment yesterday. But he and his lawyer, Jack Crisp of Concord, have strongly disagreed with that conclusion. They have argued for months that the changes made to Phenix Hall were cosmetic only and not substantial enough to invoke the federal requirements.

Crisp reiterated that yesterday. 'The complaint grossly mistakes what was done to the building,' he said. 'What you see now is what was always there. Yes, the windows and doors and steps were replaced, but in order for there to be a violation of the (federal disabilities act), you have to change the usability of the building. Changing the steps from concrete to granite does not change the usability one bit.'

The two sides met in January with other local leaders in an attempt to hash out a compromise. Ciborowski and the tenant businesses installed buzzers outside the storefronts so people unable to get in the door could call an employee out for assistance. The bagel shop has also posted its menu outside and marked an outside table as priority seating for people unable to walk inside.

'It's just enough not to make anybody happy,' said Don Brueggemann, manager of the bagel shop. 'But it was our effort to make an effort at (accessibility).' Officials from the League of New Hampshire Craftsmen could not be reached yesterday afternoon.

The Disabilities Rights Center has suggested Ciborowski install a ramp or elevate the sidewalk to meet the entrance to the businesses. Brueggemann said he and Ciborowski looked at that option but concluded a ramp would take up too much of the interior floor space and threaten the business.

'In my heart of hearts, what I would love most is to be accessible,' Brueggemann said. 'I believe that is also true for Mark. To our mind, it doesn't do anybody any good if we are not able to maintain a business. That is the kind of balance that we are walking.'

Crisp shared with the Monitor correspondence he and Ciborowski have had with the New Hampshire Division of Historic Resources. In those letters, the state preservation office said accessibility ideas proposed by the Disabilities Rights Center would 'threaten or destroy' features of Phenix Hall that make it eligible for inclusion in the National Register.

Crisp said he also has a 49-page report from an accessibility expert who concluded the work at Phenix Hall does not violate the federal disabilities act. He declined to share it with the Monitor because he may use it in the pending litigation. Fox said he's seen that report and believes the author misinterpreted the federal law.

'Your obligation goes up when you alter a building,' Fox said. 'The parts you alter have to be accessible.'

(Annmarie Timmins can be reached at 369-3323 or atimmins@cmonitor.com.)