Kimberly Barreda pulls herself and her wheelchair into her Ford Explorer and climbs into the driver’s seat with ease. With one hand on a handle controlling the brake and gas and another on the steering wheel, she executes a tight three-point turn and starts down the hill toward the tennis courts at Ptarmigan Village, the neighborhood about halfway up Big Mountain where she lives.
Although she had both legs amputated at the knee as a child, she can do pretty much whatever she wants, with the right tools. Barreda is an avid skier, a former competitive swimmer and a kayaker. She plans on learning to wakeboard this summer.
But since moving to Montana in 1994, Barreda says, she has found that public places aren’t always equipped for her or others with disabilities, despite the Americans with Disabilities Act (ADA), the 1990 federal civil rights law that prohibits discrimination based on disability and requires that most public facilities be made accessible to the disabled.
Barreda ticks off the names of local businesses she says violate the ADA, admits she complains about them often, and refers to herself as an “uppity cripple.”
But what raises her ire more than anything is her neighborhood’s homeowners association.
When she first moved into Ptarmigan Village, Barreda took to swimming in the neighborhood’s communal indoor pool, paid for by residents’ association fees, for exercise. Barreda says she knew before she bought a condo in Ptarmigan Village that most of the grounds were not up to ADA code, but at least she was able to navigate the gravel path to the indoor pool. Then, she says, the homeowners association proposed putting wood chips down on all the paths within the Ptarmigan Village grounds. Barreda objected, saying it would keep her from being able to travel the paths, including the one to the pool.
“All they had to do was nothing,” she says. “If they would have left it the way it was, there wouldn’t be a problem.”
According to Barreda the wood chips went down anyway, so she sued, saying her rights under the ADA had been violated.
In response, Ptarmigan’s lawyers alleged that Barreda was uncooperative and “combative” with Ptarmigan staff over ADA issues and was actually just trying to pry a cash settlement out of the association. And finally, they argued, the ADA did not apply at Ptarmigan Village.
(Ptarmigan Village occupies a grey area under the ADA. It has permanent private residences, like Barreda’s, which are not subject to ADA code. But it also has nightly rentals available to the public, which are. Both full-time residents and renters use common areas, like the swimming pool.)
In a 2002 summary judgment, Flathead District Court Judge Stewart Stadler ruled that the ADA does in fact apply to Ptarmigan. However, he declined to issue a judgment on whether or not Ptarmigan Village had violated the ADA, or whether the association would be required to alter the development’s common spaces. Stadler left that question for a trial to decide.
After Stadler’s decision, Barreda went into a settlement conference with Ptarmigan. As a result, a confidential contract was drawn up that, according to Barreda and her lawyer, Chad Wold, states that the paths and all common areas at Ptarmigan Village would be brought up to code within six months.
Now, four years later, Barreda says the homeowners association never honored the contract. So on April 26, Barreda filed suit to try and force them to.
Barreda parks her Explorer across the path that leads to the indoor pool, gets into her wheelchair and rolls it up to the edge of the now asphalt-covered path. Just after Barreda filed suit in 2000, the condo association paved it, but not, Barreda says, to ADA standards. From the point of view of someone who can walk, the path doesn’t look so bad. But Barreda has to work hard to get her chair up the slope, her front wheels popping off the ground with the effort. She says it’s nearly impossible on a rainy day. This is what ADA compliance comes down to in many of the cases Barreda sees–paths too steep by a degree, thresholds too high by an inch, the difference between gravel and wood chips.
Not that all the compliance issues in Ptarmigan Village are matters of degree. For instance, another pool on the property, this one outdoors, has 17 steps leading down to it.
The ADA does allow businesses to avoid compliance if the cost is prohibitive, but in depositions from the original suit, Ptarmigan Village staff and homeowners association board members admit to spending more than $300,000 on cosmetic improvements to the facility.
An expert witness hired by Barreda estimated that bringing Ptarmigan Village up to ADA specs would have cost up to $20,000.
Ptarmigan Village property manager Steve Hebard and homeowners association board member Wendy Docter declined to speak about the case, referring inquires to their lawyer, Kimberly More. More told the Independent she doesn’t comment on ongoing litigation. The homeowners association’s legal response to Barreda’s latest suit denies that the contract required them to bring the development up to ADA standards, that the ADA applies to Ptarmigan Village, and that Ptarmigan Village management failed to bring the development up to ADA standards.
As a result of this latest suit, the court may now have a second chance to determine whether or not developments like Ptarmigan Village are required to meet ADA standards. And Barreda may finally discover whether access to her neighborhood’s swimming pools is a right or a privilege.