(a) A person shall not construct, alter, or permit construction or alteration of a public building or allow the change in use of a nonpublic building to become a public building unless the specifications at the time work commences meet or exceed the accessibility standards for new construction and alterations incorporated in 28 C.F.R. §§ 35 and 36, the Americans with Disabilities Act Accessibility Guidelines (ADAAG), as amended by this chapter and the access board.

(b) Alterations of a public building and changes in use of a nonpublic building to become a public building shall comply with the standards specified in subsection (a) of this section and the rules of the access board. All altered elements and spaces shall be made accessible to the maximum extent feasible. Each existing element, space, or common area that is altered shall comply with the standards of this chapter. If compliance with accessibility standards is technically infeasible, the alteration shall provide accessibility to the maximum extent feasible. Any elements or features of the building or facility that are being altered and can be made accessible shall be made accessible within the scope of the alteration.

(c) If an alteration affects or could affect the usability of or access to an area of a facility that contains a primary function, the path of travel to the altered area and the restrooms, telephones, and drinking fountains serving the altered area shall be made accessible to individuals who use wheelchairs to the maximum extent feasible. Compliance with this subsection is required only to the extent that the cost of making the additional elements and spaces accessible does not exceed 20 percent of the total cost of the overall alteration.

(d) Full compliance with the standards in this section is not required in the rare circumstance in which an entity can demonstrate that it is structurally impracticable to meet the standards. If full compliance with the standards would be structurally impracticable, compliance is required to the extent that it is structurally practicable. In that case, any portion of the facility that can be made accessible shall be made accessible to the extent that it is structurally practicable. If provision of accessibility to individuals with certain disabilities in compliance with the standards would be structurally impracticable, accessibility shall nonetheless be provided to persons with other types of disabilities. Full compliance will be considered structurally impracticable only when the unique characteristics of terrain prevent the incorporation of accessibility features. The burden of proving the impracticability is on the person who designed or constructed the public building.

(e) The access board may exempt a public building from compliance with any of the standards established by this chapter if the board determines that compliance with the standards is not required by federal law and:

(f) The exemption provided in subdivision (e)(1) of this section shall not apply to newly constructed buildings consisting of covered multifamily dwellings built for first occupancy after January 1, 1990, unless it is impracticable to design and construct at least one building entrance on an accessible route, as defined by the appropriate requirements of ADAAG because of the terrain or unusual characteristics of the site. The burden of proving the impracticability shall be on the person who designed or constructed the covered multifamily dwelling.

(g) The access board shall adopt rules regarding compliance, variances, or abatements to a specified date, exemptions, and appeals.

(h) A public building or unit constructed or altered in accordance with the requirements of this section shall not be rendered inaccessible as a result of subsequent renovations, alterations, or additions to that building or unit. (Added 2003, No. 141 (Adj. Sess.), § 5, eff. April 1, 2005.)