Page 8B—
COLORADO REAL ESTATE JOURNAL
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April 20-May 3, 2016
resort operators are thoughtfully
improving the experience
for guests and involving
stakeholders like the U.S.
Forest Service and surrounding
communities throughout the
process. All of these things
ultimately improve the greater
destination and real estate
development opportunities at
the mountain resort base areas.
The base areas must maintain
parity with the continually
elevated on-mountain
experience. Many mountain
towns have undergone
significant transformations in
the last decade; and yet, there’s
room for more changes. It is
imperative that developers
and ski resort operators join
forces to improve the entire
experience for guests while also
committing to doing so in the
long-term best interest of the
resort communities.
At Vail Resorts, we’re
oriented around creating value
on the mountain and in the
base areas of the mountains
we operate. Our company is
the leading global mountain
resort operator and the leading
manager of hotels in iconic
resort locations, particularly in
mountain destinations. We’ve
successfully developed and
completed several mixed-use
projects at the base areas of our
mountain resorts, including
The Arrabelle at Vail Square,
A RockResort in 2008; The
Ritz-Carlton Residences, Vail in
2010; and One Ski Hill Place,
A RockResort in Breckenridge
also in 2010. These and other
projects have benefitted visitors
and local communities by
revitalizing underutilized areas
and creating revenue streams
and options for visitors through
lodging, dining and retail.
Developer Partnerships
We are keenly focused on
the remaining land we have
at our base areas. Instead
of developing these prime
parcels of land ourselves, we’re
looking for third parties who
can lend their expertise in
development and partner with
us throughout the process.
This will ensure that our guests
and communities are being
carefully considered from
beginning to end. We’re not
just looking for the highest
bidder for our sites – rather,
we want to help developers
through the process of
determining the best use of the
site as well as local nuances like
parking, employee housing,
entitlement and planning, all
of which can set the tone for
the long-term success of the
project.
We have a vested interest
in ensuring that projects
are completed, completed
right and enhance the
entire destination. We have
dedicated senior leaders of
our team to work side-by-side
with developers to create and
manage the best possible
project.
No company can be all things
to all people, of course – in
the case of Vail Resorts, it was
this type of self-awareness
that helped us recognize
the value in shifting gears
from developer to partner.
Companies like ours focus on
the value they bring to the
table and how each player can
join forces for the collective
benefit and greatest impact.
Just as the mountain
operators are the experts in
mountain management and
development, so are real
estate developers to hotel,
residential, retail or mixed-
use development. What can
significantly strengthen both
parties is the expertise and
know-how in navigating the
stakeholders that make up
the resorts in their entirety –
the year-round community,
workforce, local government
and businesses, and second
homeowners.
A third party looking to
develop in a seasonal resort
destination ought to:
• Consider who to work with
at a local government level and
the history of development in
the area;
• Adjust for the seasonal
nature of guest volume and
cash flow and develop an
understanding of year-over-year
calendar shifts;
• Consider the ins and outs
of working with the ski resort;
• Navigate recruitment,
training, development and
retention of seasonal staff;
• Consider data and analytics
– often dubbed the new “oil”
– that can maximize the value
of a property, whether through
occupancy, sales or the like;
and
• Ensure that a property or
business is considered and
maximized for valuable group
business to the area.
Few developers have the
resources or local knowledge to
go it alone in this territory and
should think carefully before
doing so. Missteps can lead
to years of growing pains and
strife with key stakeholders, all
of which inevitably will affect
the bottom line and the quality
of the product. An experienced
partner can bring tremendous
opportunity and value to third
parties and other stakeholders
for true long-term benefit.
O'Donnell
T
itle III of the
Americans with
Disabilities Act
provides that no qualified
individual with a disability
shall be discriminated
against in the full and equal
enjoyment of goods, services,
facilities, privileges, advantages
or accommodations by any
person who owns, leases,
leases to or operates a place of
public accommodation. These
provisions apply to owners and
property managers alike, and in
the context of bricks and mortar
(barriers), internet interface
(website functionality), and
policy and procedures.
A “place of public
accommodation” is a
privately owned place that
accommodates, or is open
to, members of the public
in a manner which affects
commerce. There are 12
categories of places of public
accommodation, and the
Department of Justice recently
took the position that websites
and applications are places of
public accommodation.
Title III requires a public
accommodation to make
“reasonable modifications
in policies, practices, or
procedures” and take other
special steps to ensure
access is available to persons
with disabilities. Public
accommodations must remove
physical barriers where it is easily
accomplished and are required
to ensure that new and altered
facilities are designed and
constructed in compliance with
the ADA standards.
There are two sets of the ADA
standards: 1991 Standards –
ADA Standards for Accessible
Design; and 2010 Standards
– 2010 ADA Standards for
Accessible Design. The 1991
Standards were in effect for new
construction and alterations
until March 14, 2012. The 2010
Standards were published Sept.
15, 2010, and became effective
March 15, 2012.
Under the 2010 Standards,
the U.S. Access Board writes
the initial recommendations
that are then given to the
DOJ for approval after public
comment. The Access Board
is a federal agency intended to
promote equality for people
with disabilities by developing
accessibility guidelines and
standards for the “built
environment, transportation,
communication, medical
diagnostic equipment, and
information technology.”
Title III initially applied
to facilities designed and
constructed for occupancy
after Jan. 26, 1993. Public
accommodations then had to
comply with the 1991 Standards.
The 2010 Standards became
mandatory after March 15, 2012.
New construction is construction
for which a building permit
application or start of physical
construction occurs on or after
March 15, 2012.
There is a “safe harbor” for
construction that commenced
between Sept. 15, 2010, and
March 15, 2012. The safe harbor
applies only if the construction
is compliant with the 1991
Standards and was not altered
before March 15, 2012. It is an
element-by-element test, and if
construction is not compliant
with the 1991 Standards, then
the 2010 Standards will be
applied.
All alterations affecting the
usability of the facility must be
made in an accessible manner
to the maximum extent feasible.
If alterations are made to a
primary function area, an
accessible path of travel to the
altered area must be provided.
Restrooms, telephones and
drinking fountains serving that
area must be made accessible as
well. Accessibility alterations to
path of travel are required up
to 20 percent of the cost of the
original alteration.
For existing structures, the
public accommodation must
implement “readily achievable
barrier removal.” Readily
achievable is defined as “easily
accomplishable and able to
be carried out without much
difficulty or expense.” These are
items such as accessible parking,
curb cuts, ramps, widening
doors, grab bars, lowering
telephones and dispensers,
rearranging furniture and
equipment.
DOJ’s 2010 Advance Notice
of Proposed Rulemaking made
it clear that DOJ believes the
ADA also applies to those
offering goods and services to
the public through the internet.
However, DOJ announced that
rulemaking on web accessibility
will be delayed until 2018.
Therefore, owners and operators
continue to have no guidance
for internet compliance, even as
governments begin enforcement
and individuals file lawsuits.
DOJ stated that a public
accommodation must make
videos on its website accessible
to qualified persons with a
disability in the general public,
not only their consumers.
However, this contradicts DOJ’s
earlier position that a public
accommodation could comply
by providing access through
alternative means such toll-free
numbers and call centers.
Against this backdrop,
what is a “drive-by” lawsuit?
These are cases based on very
technical violations of the strict
application of the Title III
standards. Often the plaintiff,
or their lawyer, will simply
walk through a property and
list any potential violations
observed. Most are not driven
by true accessibility issues but,
instead, by the attorney’s hope
of recovering fees and expert
witness fees.
In 2015, federal lawsuits under
the ADA increased from 4,436
in 2014 to 4,789, an 8 percent
increase. The leading states were
California, Florida, New York,
Texas and Arizona. These states
accounted for 80 percent of
the suits filed. Texas saw a 204
percent increase in filings.
In many cases, there are
no damages available unless
the case can be coupled with
a state statute that provides
for such an award. Lack of
qualified professional support,
coupled with misunderstanding
of the law and applicable
standards – such as application
of new construction/alteration
standards to pre-existing
facilities – and misunderstanding
of “readily achievable” or
“acceptable tolerance levels,”
often leads the target to settle
these cases quickly, without
adequate investigation, and for
amounts above their value and
beyond what is required.
This is understandable
because the target is driven by
fear and perceived cost-benefit
analysis, and wants to avoid
negative press by getting the
matter behind them. However,
a target can deflect such suits by
being proactive, formulating a
defense strategy with competent
professional support, managing
public perception and
presenting a solid, aggressive
response.
In hopes of addressing this
issue, HR 3765 is currently
pending in the U.S. House
of Representatives. This bill
would amend the ADA to add
a provision requiring that any
person must provide written
notice, specific enough to
allow the owner or operator to
identify the barrier, before filing
a civil action based on removal
of the barrier. This is a step in
the right direction, but public
accommodations still have little
guidance and remain exposed
and vulnerable to baseless suits.
Until the DOJ regulations
are issued or more test
cases are published, public
accommodations will be best
served by taking advantage
of available resources to
determine their obligations,
auditing their existing facilities
and websites for compliance,
obtaining competent support
with compliance questions,
being attentive to formal and
informal complaints alike, and
being prepared to respond
promptly to any threat of
litigation with an informed
defense.
Brian Blair
Partner, BakerHostetler Hospitality
Group, Orlando
Eben Clark
Counsel, BakerHostetler Hospitality
Group, Denver
