Understanding How the ADA Applies to Historic Properties

September 19, 2023

Historic does not mean inaccessible.

Title III of the Americans with Disabilities Act (“ADA”), which applies to places of public accommodation[1], does not contain a “grandfather clause.”  In other words, just because a place of public accommodation is old or was built before the ADA was enacted does not mean that the property is exempt from the Act’s accessibility requirements.

A related and common misconception about the ADA is that historic properties are exempt from the Act’s requirements. Although the ADA does provide exceptions for qualified historic properties these exceptions are limited.

If a place of public accommodation is historic as defined by the ADA, and full compliance with accessibility standards would threaten or destroy the historical significance of the property, fewer accessibility requirements may be required. Let’s explore these exceptions below.

What is a Historic Property Under the ADA?

For purposes of the ADA, historic properties are those that are either listed on, or eligible to be listed on, the National Register of Historic Places under the National Historic Preservation Act[2] or designated as historic under state or local law. 28 C.F.R. § 36.405.  Although many buildings have architectural or historical significance because of events that took place there or the time in which they were constructed, the ADA only recognizes properties with significant historical, architectural or artistic value or importance who meet this definition.

What are the Minimum Accessibility Requirements for Historic Properties?

Historic properties are not exempt from the ADA’s accessibility requirements but may be allowed to use alternative requirements to meet their accessibility obligations.

According to the ADA’s Accessibility Guidelines, historic properties must, at a minimum, meet the following accessibility requirements. These minimum requirements are exceptions from the ADA’s general requirements, which require a higher level of access.

• At least one accessible route from a site access point (like a parking lot) to an accessible entrance.
• At least one accessible public entry. If there is no public entry that can be made accessible then a non-public, unlocked entry may be provided, with directional signage provided at the public entries.
• If toilets are provided, at least one must be on an accessible route. A unisex privacy restroom may be used for this purpose.
• An accessible route must be provided to all public spaces at the level of the accessible entry. Access to all levels of the building is not required, but must be provided where practical.
• Displays and written information must be viewable by a seated person, including horizontal displays at a maximum height of 44 inches.

Keep in mind that these are minimum requirements, and allowed as an alternative only when full compliance with ADA accessibility requirements would threaten or destroy the historic significance of the property. Although accessibility rules are more flexible when it comes to historic properties, historic properties are still required to remove barriers to access where it is “readily achievable”[3] to do so, and must comply with the ADA’s alteration requirements to the “maximum extent feasible.”[4]

What are State Historic Preservation Officers?

 State Historic Preservation Officers (“SHPO”) are State appointed officials who carry out certain responsibilities under the National Historic Preservation Act. Among other things, SHPOs consult with public accommodations about how to provide access while protecting significant elements of qualified historic properties.

If a place of public accommodation believes it is not technically feasible to meet ADA accessibility standards without threatening or destroying the historic significance of a property, it must consult with the SHPO.  If the SHPO agrees that compliance with accessibility requirements would threaten or destroy the historic significance of the property, the use of the exceptions described above may be permitted.

If complying with the minimum requirements of the exceptions themselves would threaten or destroy the historic significance of a historic property, other methods of providing accessibility may be acceptable. Other methods must be considered and implemented on a case-by-case basis, in conjunction with the SHPO.

Are There Resources Available on How to Assess and Ensure Accessibility at Historic Properties?

The National Parks Service published Preservation Brief 32 which provides guidance on making historic properties accessible while preserving their historic character. The Brief suggests a three-step approach that incorporates careful planning, consultation, and sensitive design:

1. Reviewing the historical significance of a property.
2. Assessing the property’s existing and required level of accessibility.
3. Identifying and evaluating accessibility options within a preservation context.

Other Resources:

For a more in-depth look at the impact of the ADA on historic properties see the ADA National Network, Accessing the Past: Accessibility in Historic Buildings and Facilities (November 2, 2022, Webinar and Related Materials)

[1] A “place of public accommodation” is a facility operated by a private entity whose operations affect commerce and that falls within at least one of twelve categories including places of lodging, establishments serving food and drink, and places of recreation, among others. See 28 C.F.R. § 36.104.

[2] 16 U.S.C. § 470 et seq.

[3] “Readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.” 28 C.F.R. § 36.104.

[4] The phrase “to the maximum extent feasible” applies to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards. In these circumstances, any feature that can be made accessible shall be made accessible. 28 C.F.R. § 36.402(c).