The opinion
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SJC-11473
J.M. HOLLISTER, LLC. vs. ARCHITECTURAL ACCESS BOARD.
Suffolk. March 3, 2014. - July 10, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.
Architectural Access Board. Handicapped Persons.
Administrative Law, Judicial review, Substantial evidence,
Agency's interpretation of regulation. Statute,
Construction. Zoning, Variance. Words, "Entrance."
Civil action commenced in the Superior Court Department on
June 25, 2010.
The case was heard by John C. Cratsley, J., on a motion for
judgment on the pleadings.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Daniel P. Dain for the plaintiff.
Douglas S. Martland, Assistant Attorney General, for the
defendant.
Richard M. Glassman, for Disability Law Center & others,
amici curiae, submitted a brief.
CORDY, J. This case turns on the interpretation and
application of a Massachusetts regulation requiring that each
2
"entrance" to a public building or facility be accessible to
persons with disabilities. 1 See G. L. c. 22, § 13A; 521 Code
Mass. Regs. §§ 5.1, 25.1 (2006). The Architectural Access Board
(board) issued a final decision concluding that each of the
three doorways of a retail store in Kingston, operated by J.M.
Hollister, LLC (Hollister), was a separate entrance, and
therefore that each doorway was required to be accessible to
persons with disabilities. The board also denied Hollister's
request for a variance from compliance with the accessibility
regulations. Hollister sought judicial review of the decision
pursuant to G. L. c. 30A. 2 A Superior Court judge affirmed the
board's decision, as did the Appeals Court on appeal. See J.M.
Hollister, LLC v. Architectural Access Bd., 83 Mass. App. Ct.
513, 524 (2013) (Hollister). We granted Hollister's application
for further appellate review and also affirm the judgment of the
Superior Court, because the board's decision was based on
substantial evidence of meaningful differences in the use and
functionality of the three doorways at issue, and because the
1
This includes persons in wheelchairs, or others "who
experience substantial limitations in one or more major life
activities, including . . . walking." 521 Code Mass. Regs.
§ 5.1 (2006). G. L. c. 22, § 13A.
2
According to J.M. Hollister, LLC (Hollister), the parties
have agreed to stay enforcement of this order pending
adjudication of this appeal.
3
denial of the variance was based on evidence of a substantial
benefit of access for persons with disabilities. 3
Background. 1. Regulatory framework. General Laws c. 22,
§ 13A, empowers the board to adopt rules and regulations
"designed to make public buildings and facilities accessible to,
functional for, and safe for use by persons with disabilities."
See 521 Code Mass. Regs. § 2.1 (2006). 4 These regulations are
intended to ensure that "all such persons may have the
educational, living and recreational opportunities necessary to
be as self-sufficient as possible and to assume full
responsibilities as citizens." Id. at § 2.2 (2006). The
regulations require that "[a]ll public entrance(s) of a building
or tenancy in a building shall be accessible." 5 Id. at § 25.1.
"Accessible" means that the site or building "can be approached,
entered, and used by persons with disabilities." Id. at § 5.1.
3
We acknowledge the brief of amici curiae the Disability
Law Center, Boston Center for Independent Living, Institute for
Human Centered Design, and the American Association of People
with Disabilities.
4
The applicable statute and regulations are enforced by
local building inspectors and by the Architectural Access Board
(board). G. L. c. 22, § 13A.
5
Prior to 1996, the regulations required only "primary
public entrance(s)," and not "every public entrance(s)," to be
accessible. See Iodice v. Architectural Access Bd., 424 Mass.
370, 375 (1997); 521 Code Mass. Regs. § 26.1 (1986).
4
See G. L. c. 22, § 13A. 6 Where compliance with the regulations
is necessary, an owner or tenant may seek a variance if it
believes "that full compliance with 521 [Code Mass. Regs.] is
impracticable." 7 521 Code Mass. Regs. § 4.1 (2006).
2. Store design. The facts of this case are largely
undisputed on appeal. Hollister is a clothing retailer that
leases and operates a store at the Independence Mall in
Kingston. When Hollister opened the store in 2005, it received
a building permit to replace a fully accessible mall-grade
interior entrance with a raised "porch" design common to many
Hollister stores. 8 This entryway through the porch is designed
to look like a "California surf shack," consisting of two steps
leading up to a roofed porch that extends outward from the wall
of the store into the mall. Hollister, 83 Mass. App. Ct. at
514. The porch contains large plants, pictures, and other
6
Any construction, remodeling, or alterations of or in
public buildings must comply with these statutory and regulatory
requirements. See G. L. c. 22, § 13A; 521 Code Mass. Regs.
§§ 3.1, 3.2, 3.3 (2006).
7
Compliance is impracticable where it would be
"technologically unfeasible" or where compliance "would result
in excessive and unreasonable costs without any substantial
benefit to persons with disabilities." 521 Code Mass. Regs.
§ 5.1.
8
Ten other stores in Massachusetts operated by Hollister
use this raised porch design.
5
decorative items. 9 At the back of the porch, a patron has two
options: descend two steps to the left, through a doorway to
the men's section ("Dudes"), or descend two steps to the right,
through a doorway to the women's section ("Bettys").
The porch doorway is not accessible to persons with
disabilities because it requires the use of stairs leading up to
the porch and then down again into the store. 10 On either side
of and in close proximity to the porch are two accessible doors
at mall grade that lead directly into the store without steps or
ramps. Both side doorways are designed to look like plantation
shuttered windows, and are equipped with automatic door
openers. 11 A patron who enters through the left accessible door
9
Porches at other Hollister stores occasionally include
chairs and magazines.
10
Some Hollister stores use the same theme of a "California
surf shack" porch but have no stairs.
11
At the time of the complaint instigating the board's
review of the store design, there was only one accessible
doorway, to the left of the central porch. This doorway was
nonfunctional on several occasions. To the right of the porch
was an emergency exit door that was not used as an entrance.
This lack of reliable functionality of the left door, which was
the only accessible door at the time, informed the board's
initial decision and was a partial basis for remand by the
Superior Court judge. After the original complaint had been
filed but before the board had held its first hearing after
remand, Hollister altered the emergency exit door to the right
of the porch so it could function as a second accessible door.
Hollister also maintains that the problems with the left door
have been resolved. On appeal, we assume that there are two
functional accessible doors adjacent to the porch entrance and
accordingly omit details regarding when one or both of the
6
will arrive in the same location as if he or she had entered
through the porch and descended the stairs to the left, whereas
a patron who enters through the right accessible door will
arrive in the same location as if he or she had descended the
stairs to the right. See Hollister, 83 Mass. App. Ct. at 514.
In other words, a patron entering through the porch has a choice
of which section of the store to enter, whereas a patron using
one of the side accessible doorways enters directly into a
particular section.
3. Procedural history. In January, 2008, Jennifer Niles,
a wheelchair user, filed a complaint with the board alleging
that the Kingston store was not accessible. See 521 Code Mass.
Regs. §§ 2.3.1, 4.2 (2006); note 11, supra. In June of that
year, while the board was investigating the complaint, Hollister
applied for a variance from its obligation to make all public
entrances to the store handicapped accessible. See id. at
§ 4.1. The board denied the variance application because
Hollister had failed to prove that it was impractical to make
the store accessible. See id.
Hollister appealed from the denial of the variance and
requested an adjudicatory hearing before the board. See id. at
accessible doors were available, except where relevant. See
J.M. Hollister, LLC v. Architectural Access Bd., 83 Mass. App.
Ct. 513, 514-516 (2013) (Hollister) (providing greater detail on
functionality and availability).
7
§ 4.1.1(a). Hollister alleged that a variance was not needed
because the design of the store complied with the requirements, 12
and alternatively, that if a variance was required, it was
deserving of one because the cost of renovating the central
porch to make it accessible would be excessive. In November,
2008, after a hearing, the board issued a decision concluding
that Hollister was not in compliance with 521 Code Mass. Regs
§ 25.1. The board did not specifically state in its decision
whether it considered each of the three doorways on the façade
to be a separate entrance, such that the inaccessibility of the
central porch doorway alone constituted a violation, or whether
the noncompliance stemmed from the lack of functionality of the
accessible doorway(s) adjacent to the central porch. The board
further affirmed its denial of the variance, because Hollister
had created the noncomplying condition itself, and it had failed
to show that the cost of compliance would be excessive without
substantial benefit to persons with disabilities. The board
accordingly ordered Hollister to bring the store into
12
Specifically, Hollister asserted that the multiple
doorways on the store's façade were essentially one
comprehensive entrance, and that the regulations permit an
entrance to include inaccessible elements such as stairs, as
long as an accessible doorway is also provided. Accordingly, it
claimed that the only issue in the complaint was the
functionality of the accessible doorway, which had been
resolved.
8
compliance. See G. L. c. 22, § 13A; 521 Code Mass. Regs.
§§ 1.00, 4.00, 26.00 (2006).
Hollister sought judicial review of the board's decision,
and in August, 2009, a judge in the Superior Court remanded the
matter to the board for further proceedings, because he
concluded that the administrative record was not sufficiently
developed. The judge asked the board to revisit the question
whether the three doorways constituted separate entrances or a
single integrated entrance, and to reconsider whether Hollister
should be granted a variance.
On remand, the board held an evidentiary hearing. It
determined that the three separate doorways on the store's
façade (the left accessible door, the central porch, and the
right accessible door) constituted three separate entrances
under the regulatory definition of "entrance" as an "access
point," because each side doorway provided access to only one
side of the store, whereas the central, raised doorway provided
access to both sides of the store. See 521 Code Mass. Regs.
§§ 5.1, 25.1. The board further concluded that a variance was
not appropriate because modification was not impracticable. 13
13
The board determined that compliance was not
technologically infeasible, as Hollister had constructed stores
with the porch design but without steps in other locations, and
that the substantial benefit to persons with disabilities
outweighed the cost of compliance, particularly where Hollister
had created the noncompliant condition. See G. L. c. 22, § 13A;
9
The board therefore denied Hollister's request for a variance
and ordered the store again to bring its central porch entrance
into compliance with 521 Code Mass. Regs. § 25.1.
Hollister appealed the board's decision to the Superior
Court and moved for judgment on the pleadings. In July, 2011, a
judge affirmed the board's decision that the doorways
constituted separate entrances, because this decision was based
on substantial evidence and a reasonable interpretation of the
regulations. 14 Further, the judge found that there was
substantial evidence to support the denial of a variance. 15
Hollister sought review of the Superior Court ruling by the
Appeals Court. See Hollister, 83 Mass. App. Ct. at 514. In a
published decision, the Appeals Court concluded that the board's
finding that "the three doors were separate entrances because
521 Code Mass. Regs. § 4.1 (2006). Further, the board was not
persuaded that the high cost estimates Hollister had provided
for modification were credible.
14
Specifically, the judge reasoned that the board's
rejection of Hollister's analogy to revolving doors and
turnstiles, and to other approved projects in Boston, was not
arbitrary or capricious, because the board is empowered to
"consider the distinct uses of each access point" in any given
façade.
15
The judge reasoned that the board was entitled to rely on
the testimony of a disabled patron to determine that there would
be a substantial benefit to such patrons of having an accessible
porch, and to use the knowledge and experience of its members to
conclude that the cost estimates provided by Hollister were not
credible.
10
each door constituted a separate access point to the store" was
not "arbitrary, capricious, or contrary to law," given the
definition of "entrance" in the regulations. Id. at 517-518.
The board was not required "to consider a door which is
accessible by stairs alone to be the same entrance as doors that
are physically separate and accessible," despite Hollister's
contention that the provisions permitting turnstiles and
revolving doors, and the contemplation of stairs as part of an
accessible entrance, so required. Id. at 518-519. Rather, the
court deferred to a reasonable interpretation of the regulatory
language adopted by the board and noted that this interpretation
was consistent with the remedial purposes of the law, reflected
in the legislative history, that all buildings be entirely
accessible to persons with disabilities. 16,17 Id. at 520, 522-
523.
16
The Appeals Court rejected Hollister's claim that the
board erred and exceeded its statutory authority in considering
"experiential factors." See Hollister, 83 Mass. App. Ct. at
523. It concluded that the board could appropriately consider
grade, level, distance, and experience, and that, contrary to
Hollister's assertion, the regulations provided "a concrete,
bright line measure, [to] ensure[] accessibility." Id.
17
In dissent, one Appeals Court judge raised concerns that
the board committed an error of law because there was
insufficient support for its conclusion that each door framed
within a single entryway constituted a separate entrance, and
that the court's upholding of this decision could have far-
reaching consequences for buildings throughout Massachusetts.
See Hollister, 83 Mass. App. Ct. at 524, 526-527 (Berry, J.,
dissenting).
11
The Appeals Court also affirmed the denial of the variance,
noting that, where there is a substantial benefit to persons
with disabilities in requiring compliance, the cost of
compliance is irrelevant. See id. at 523-524, quoting Pyramid
Co. of Hadley v. Architectural Barriers Bd., 403 Mass. 126, 131
(1988). Given the board's finding of a substantial benefit, it
was reasonable for it to deny the variance, regardless of the
credibility and extent of the costs to Hollister. Hollister, 83
Mass. App. Ct. at 524. We granted Hollister's application for
further appellate review on both issues.
Discussion. Like the courts below, we review the board's
decision pursuant to G. L. c. 30A, § 14 (7), and will not
disturb the decision unless it was made in excess of the board's
statutory authority; is unsupported by substantial evidence; 18 or
is arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law. Where, as here, the Legislature
has granted broad authority to the board, and the board has
interpreted a regulation that it has been tasked by the
Legislature with promulgating, we afford "considerable
deference" to the board's interpretation of both its enabling
18
Substantial evidence is such evidence, "within the record
developed before the administrative agency, . . . as a
reasonable mind might accept as adequate to support the agency's
conclusion." Seagram Distillers Co. v. Alcoholic Beverages
Control Comm'n, 401 Mass. 713, 721 (1988), citing Labor
Relations Comm'n v. University Hosp., Inc., 359 Mass. 516, 520-
521 (1971), and G. L. c. 30A, § 1 (6).
12
statute and its own regulation. Ten Local Citizen Group v. New
England Wind, LLC, 457 Mass. 222, 228 (2010), quoting Warcewicz
v. Department of Envtl. Protection, 410 Mass. 548, 550 (1991).
See Iodice v. Architectural Access Bd., 424 Mass. 370, 373
(1997). This deference, however, is not without limit. Board
of Appeals of Woburn v. Housing Appeals Comm., 451 Mass. 581,
590 (2008), and cases cited. Hollister bears the burden of
showing that the board's interpretation is "not rational." Ten
Local Citizen Group, supra.
1. Number of entrances. Hollister essentially makes two
arguments, largely identical to those it advanced before the
Superior Court and the Appeals Court, regarding the meaning of
an "entrance" under 521 Code Mass. Regs. § 5.1. First, it
asserts that the board's interpretation of the term "entrance"
and related terms within the regulations was "legally
untenable," because the regulations clearly consider adjacent
doorways on the same façade to be a single entrance. See id. at
§§ 5.1, 26.2, 26.3 (2006). Second, Hollister claims that the
board's determination that the three doorways constitute
separate entrances is not supported by substantial evidence and
is rooted instead in the board's unjustified consideration of a
disabled patron's "experience" in accessing the store. We are
not persuaded by either claim in the circumstances of this case.
13
Under 521 Code Mass. Regs. § 25.1, each "public entrance[]
of a . . . tenancy in a building [must] be accessible." An
"entrance" is defined as "[a]ny access point to a building or
portion of a building . . . used for the purpose of
entering. . . includ[ing] the approach walk, 19 stairs, lifts,
ramp or other vertical access leading to the entrance platform;
the entrance platform itself; vestibules, if provided; the entry
door(s) or gate(s); and the hardware of the entry door(s) or
gate(s)." Id. at § 5.1. 20
Hollister argues that multiple doorways on the same façade
must be deemed a single entrance, and where two of the three
doorways are accessible, it was inappropriate for the board to
conduct further inquiry into the nature of the third doorway.
Hollister points to the inclusion in the definition of
"entrance" of "stairs, lifts, ramp or other vertical access" as
supporting its contention that steps and other inaccessible
design elements may be part of an accessible multi-door
entrance. See 521 Code Mass. Regs. § 5.1. Hollister reads the
19
"Walk" is defined as "[a]n interior or exterior pathway
with a prepared surface intended for pedestrian use, including
but not limited to general pedestrian areas such as plazas,
courts, and crosswalks." 521 Code Mass. Regs. § 5.1.
20
The regulations further require that "[e]ntrance(s) . . .
have a level space on the interior and exterior of the entrance
doors." 521 Code Mass. Regs. § 25.2 (2006). "Level" is defined
as "[s]loped no more than 1:50 or 2%," and "space" is defined as
"[a] definable area, e.g., room, . . . assembly area, entrance,
. . . alcove, courtyard, or lobby." Id. at § 5.1.
14
regulations too narrowly. The board does not dispute that the
regulations plainly enable it to consider multiple doors as a
single entrance, including where some of the doorways contain
inaccessible elements such as steps. But the board is not
required to consider every combination of accessible and
inaccessible doorways as a single entrance, particularly where
they provide different use patterns, as the board found here.
See Iodice, 424 Mass. at 375 ("Nothing in the wording or context
of the access regulations supports the plaintiff's emphasis").
Mere proximity of an inaccessible doorway to an accessible one
does not mean that the board must end its inquiry.
The board contends that its assessment of what constitutes
an "access point" and therefore an "entrance" instead involves
consideration of the functionality and use of each doorway, and
of differences in such functionality and use between adjacent
doorways. See Iodice, 424 Mass. at 376 (board must conduct
practical, functionality-based assessment of public use). 21 See
also 521 Code Mass. Regs. § 5.1 (defining "use" as "[p]urpose
for which the building is designed, used or intended to be
used"). Where the term "access point" is not defined in the
regulations, the board is entitled to exercise its authority
through the decisional process to define it further. See
21
Although Iodice, 424 Mass. at 371, 376, involved an
earlier version of the regulations, its general framework
remains applicable.
15
generally Hastings v. Commissioner of Correction, 424 Mass. 46,
49 (1997).
The board's emphasis on use pattern in determining whether
multiple doorways constitute a single or multiple entrances is
apparent in, and indeed supported by, its rejection of
Hollister's analogy of its raised porch design to turnstiles and
revolving doors, which are specifically permitted under the
regulations as part of multi-door entrances. Under 521 Code
Mass. Regs. §§ 26.2, 26.3 (2006), an inaccessible revolving door
or turnstile may be part of an accessible entrance if an
accessible door or gate is "provided adjacent to" the revolving
door or turnstile and it "permit[s] the same use pattern."
Hollister contends that these provisions demonstrate that the
board must consider an inaccessible doorway and an adjacent
accessible doorway as a single accessible entrance. We
disagree. First, these provisions pertain to two specific types
of inaccessible entryways and do not require the board to extend
such treatment to other inaccessible designs, such as
Hollister's raised porch. 22 Second, and more importantly,
Hollister ignores a key component of these narrow provisions,
22
Notably, revolving doors and turnstiles serve important,
non-aesthetic purposes justifying their unique treatment, such
as climate control, crowd control, and security measures. The
raised porch, in contrast, serves no functional purpose. Cf.
Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co.,
835 F. Supp. 2d 1077, 1078, 1081 (D. Colo. 2011).
16
which require not only that an accessible doorway accompany the
revolving door or turnstile, but also that the two entryways
provide the "same use pattern." See 521 Code Mass. Regs.
§§ 26.2, 26.3. That is, for example, when a person enters
through the revolving door or turnstile, that person ends up in
essentially the same place as he or she would, had he or she
used the accessible doorway. 23 The board's rejection of this
comparison, where entering through the central porch gives the
patron the option of arriving at a place different from the one
23
At the hearing before the board, Hollister presented
several examples of locations in Boston where the board had
approved entrances consisting of an inaccessible revolving door
accompanied by at least one accessible doorway. Hollister
argues on appeal that the board should have given these examples
precedential value and viewed Hollister's porch design as
analogous to these multi-door entrances. In rejecting
Hollister's analogy of its raised porch design to a revolving
door, however, the board reasonably determined that these
examples were not persuasive, as each one of them contained a
revolving door at grade level with an adjacent accessible door,
compliant with the specific provisions of 521 Code Mass. Regs.
§ 26.2 (2006). Even if the board did find some merit in
Hollister's analogy to revolving doors, the board was free to
reach a different conclusion on the facts presented here, as
long as it was not arbitrary or capricious. Here, the board was
confronted with a unique design feature, and its decision not to
rely on its prior approvals of dissimilar entrances was a
reasonable one.
Similarly, we are unpersuaded by Hollister's assertion that
the board should have given weight to the fact that ten other
building inspectors in Massachusetts believed that this design
complied with the regulations. "[T]he board [is] the ultimate
arbiter of regulatory compliance." Iodice, 424 Mass. at 374.
See G. L. c. 22, § 13A. It was therefore within the board's
discretion to either credit or reject the inspectors'
conclusions.
17
arrived at by entering through one of the accessible side doors,
supports its reasonable determination that differences in use
pattern between doorways may signal multiple entrances.
We are persuaded, as the Appeals Court was, that the
board's interpretation of the meaning of "access point" is
appropriately rooted in the legislative history of G. L. c. 22,
§ 13A, and the mandate of ensuring full accessibility. See
Hollister, 83 Mass. App. Ct. at 521-523. Although Hollister's
reading of the regulations is also a plausible one, it is not
the only one, and we "may not displace [the] board's choice
between two fairly conflicting views." Southern Worcester
County Regional Vocational Sch. Dist. v. Labor Relations Comm'n,
386 Mass. 414, 420 (1982). To the extent that the board
considered the use and function of each doorway in determining
whether the three doorways constituted separate entrances,
rather than merely concluding that the combination of an
accessible and inaccessible doorway per se constituted a single
accessible entrance, the board's interpretation of the scope of
its authority was reasonable and not arbitrary or an abuse of
discretion, given the significant differences between the three
doorways, as discussed below. See Hollister, 83 Mass. App Ct.
at 520-521.
Further, the board employed its interpretation of an
"access point" to reach a reasonable conclusion supported by
18
substantial evidence. It heard evidence about each doorway's
particular use and function, and observed meaningful differences
in functionality, use, and design that, under a reasonable
interpretation of the regulations, rendered each doorway a
separate and discrete access point into the store. Most
significantly, the board found, based on testimony, photographs,
and architectural renderings, that entering through either of
the side accessible doorways placed a patron in a location
within the store different from the one the patron would be if
he or she entered through the central porch. A patron entering
through one of the accessible doors would find himself in one of
the two clothing sections, with a fifty per cent chance of
arriving in the desired section as a first-time visitor, whereas
a patron entering through the central porch would be able to
make an informed choice as to which section to enter. In this
respect, patrons did not arrive in the same place through the
various doorways, and therefore those doorways did not provide
the same usage pattern. The porch design, the board reasoned,
gave able-bodied patrons an advantage in being able to arrive in
an optimal interior location. This finding alone is enough to
constitute substantial evidence supporting the board's
conclusion that each doorway represented a separate access
point. See Seagram Distillers Co. v. Alcoholic Beverages
Control Comm'n, 401 Mass. 713, 721 (1988).
19
In addition, although the board did not specifically
reference the design of the doorways as a basis for its
conclusion, the evidence it heard regarding the discrete
aesthetic presentation of each doorway likely also informed its
determination that the three doorways did not function as a
single entrance. Although the regulations are indeed "'use'
rather than 'design' regulations," Iodice, 424 Mass. at 375,
design may be a reasonable consideration to the extent that it
signals and informs use. The central porch design "creates an
aesthetic which is a valuable part of . . . Hollister's branding
efforts" and is intended "to convey a certain ambiance and
appearance that makes the store inviting as a whole." Colorado
Cross-Disability Coalition v. Abercrombie & Fitch Co., 835 F.
Supp. 2d 1077, 1078, 1081 (D. Colo. 2011). But this "surf
shack" design is not extended to the accessible side doorways,
which instead are disguised as windows. See id. at 1082. The
accessible doorways therefore present themselves as a less than
fully participatory way to enter the store. Cf. Colorado Cross-
Disability Coalition v. Abercrombie & Fitch Co., 957 F. Supp. 2d
1272, 1276, 1281 (D. Colo. 2013) ("visual impression is of a
main, decorated, primary but inaccessible entrance in the
center" that is "qualitatively different [from] or superior" to
"smaller, inferior, undecorated accessible entrances to each
20
side"); Colorado Cross-Disability Coalition, 835 F. Supp. 2d at
1082.
These design distinctions are exacerbated by the fact that
the steps to the porch serve no functional purpose. Cf.
Colorado Cross-Disability Coalition, 835 F. Supp. 2d at 1078
(steps leading to porch of Hollister store "are purely
ornamental"). Especially where, as here, the inaccessible
entryway is one of Hollister's own design, and not a function of
any unique, preexisting feature of the site, there is no
justification for having such a meaningfully different
inaccessible entryway that visually and functionally signals
lesser access to the store. Cf. id. at 1082.
Given the differences in use, treatment, and presentation
of the central porch as compared to the accessible side doors,
it was reasonable for the board to conclude that these doorways
each constituted different access points and therefore separate
entrances. See New Boston Garden Corp. v. Assessors of Boston,
383 Mass. 456, 466 (1981) (substantial evidence is such evidence
"as a reasonable mind might accept as adequate to support a
conclusion"). Indeed, this is the same reasoning and result of
a Federal District Court decision addressing the same question
regarding the compliance of Hollister's raised porch design with
the Americans with Disabilities Act (ADA) design standards. See
Colorado Cross-Disability Coalition, 835 F. Supp. 2d at 1082-
21
1083 (central porch entryways of two Hollister stores violate
Title III of ADA because side accessible doors "do not permit
the same pattern of use," and inaccessible porch design
"unnecessarily . . . excludes people using wheelchairs from full
enjoyment of the aesthetic for that brand"). 24 See also Colorado
Cross-Disability Coalition vs. Abercrombie & Fitch Co., U.S.
Dist. Ct., No. 09-cv-02757, slip op. at 2 (D. Colo. Feb. 26,
2014) (central porch entryways of 231 Hollister stores violate
ADA); Colorado Cross-Disability Coalition, 957 F. Supp. 2d at
24
Hollister contends that this Federal litigation is not
analogous because it involves different rules and legislative
history. The Americans with Disabilities Act (ADA) design
standard applicable to that litigation in fact closely resembles
521 Code Mass. Regs. §§ 5.1, 25.1. See 28 C.F.R. § 36.406
Appendix A, 1991 Standard for Accessible Design 3.5 (defining
"entrance" as "[a]ny access point to a building or portion of a
building or facility used for the purpose of entering. . . .
includ[ing] the approach walk, the vertical access leading to
the entrance platform, the entrance platform itself, vestibules
if provided, the entry door[s] or gate[s], and the hardware of
the entry door[s] or gate[s]"). In that case, the parties
presented nearly identical arguments for and against a finding
of compliance with the ADA design standards as those presented
here. Colorado Cross-Disability Coalition, 835 F. Supp. 2d at
1079-1081. Although we are not bound to follow the Federal
court's reasoning and decision, we consider that litigation
useful by way of analogy. The District Court judge concluded
that 231 Hollister stores throughout the United States violated
the ADA, and required Hollister "to remove, ramp, or close off
all of the elevated entry doors by January 1, 2017, at a rate of
at least 77 stores each year beginning on January 1, 2014."
Colorado Cross-Disability Coalition vs. Abercrombie & Fitch Co.,
U.S. Dist. Ct., No. 09-cv-02757, slip op. at 2 (D. Colo. Feb.
26, 2014). That decision is currently on appeal to the United
States Court of Appeals for the Tenth Circuit. If the
plaintiffs prevail before the Tenth Circuit, Hollister will be
required to modify its raised porch design in stores across the
country, regardless of our decision.
22
1274-1275, 1281. Giving deference to the board's interpretation
of its regulations, we conclude that the board was warranted in
finding that each doorway constituted a separate access point.
Even though "reasonable minds could accept" an alternative
conclusion, such minds could similarly find the board's findings
and conclusion plausible and adequately supported, and we
therefore will not disturb them. See Iodice, 424 Mass. at 376.
We address briefly Hollister's contention that the board's
decision was based in its consideration of the subjective
"experience" of a disabled store patron, a nebulous concept that
creates too much uncertainty for future architectural and design
decisions. There may be a fine line between consideration of
the objective elements of use and functionality and the more
subjective nature of one's experience with and in the store.
However, we need not determine the extent to which the
experiences of a person with disabilities may inform the board's
analysis of what constitutes an entrance. The board's decision
here was based on a reasonable interpretation of the applicable
regulations and was supported by substantial evidence of the use
and functionality of the doorways, demonstrating that the raised
porch at the center of the store's façade contained a unique
design and use pattern that meaningfully distinguished it from
23
the accessible doorways on either side of it. 25 The board
reasonably could conclude from the evidence before it that the
three doorways were not integrated but rather constituted
separate access points into the store in both form and
function. 26 Accordingly, we affirm the board's conclusion on
this ground.
2. Denial of variance. Hollister also challenges the
board's denial of its request for a variance. It contends that
the denial was not supported by substantial evidence because the
limited testimony regarding the time savings a disabled patron
would have if he or she were able to enter through the central
porch and choose which section to enter, rather than entering
the wrong section and having to travel to the correct one, did
not rise to the level of articulating a "substantial benefit."
25
Assessment of the physical location at which a given
access point places a patron is an objective consideration not
entirely dependent on the content of the surroundings once
inside. To the extent that the board concluded that a patron
entering through the left accessible door, the central porch,
and the right accessible door arrived inside the door at
distinctly different locations, this consideration was not
unreasonable or in error.
26
Were experience a primary or perhaps exclusive factor in
the board's analysis, we would share the concern of Hollister
and the dissenting justice of the Appeals Court that inquiries
into adequate accessibility would be overly subjective and
present challenges for architectural planning and design. See
Hollister, 83 Mass. App. Ct. at 526-527 (Berry, J., dissenting).
However, experience did not play such a significant role in the
board's analysis here as to render the board's action an abuse
of discretion.
24
We agree with the Superior Court judge that there was
substantial evidence to support the board's finding.
Where compliance with the regulations is necessary, an
owner or tenant may seek a variance if it believes "that full
compliance with 521 [Code Mass. Regs.] is impracticable." 521
Code Mass. Regs. § 4.1. Compliance is impracticable where it
would be "technologically unfeasible" or where compliance "would
result in excessive and unreasonable costs without any
substantial benefit to persons with disabilities." 27 Id. at
§ 5.1.
The board denied Hollister's request for a variance because
it concluded that there would be a substantial benefit to
persons with disabilities from access to the central porch. See
521 Code Mass. Regs. § 5.1. The board based this conclusion
primarily on the testimony of a patron with disabilities who
stated that the lack of access to both sections of the store
from each accessible door made it more difficult for him to shop
at Hollister. Specifically, he testified that if he entered
through the men's side and wanted to get to the women's side, or
vice versa, he would "probably just turn around and leave, or
. . . go and see if there was another entrance on the other side
[of the storefront]" to the section he wanted to access. He
27
Hollister concedes that modification is not
technologically infeasible, given that it has numerous other
locations with grade-level, accessible "porch" entrances.
25
noted that other Hollister stores had accessible central
entrances that preserved the "feel" of the porch entrance but
allowed disabled patrons to have "the same experience as the
general able-bodied public."
It is not our role to review the board's evidence de novo
or substitute our own assessment of the evidence's credibility
or the permissible inferences that may be made. See Medi-Cab of
Mass. Bay, Inc. v. Rate Setting Comm'n, 401 Mass. 357, 369
(1987). Given the board's determination that the patron was a
credible witness, it was reasonable for it to rely on such
testimony as sufficient support for its conclusion. See Quintal
v. Commissioner of the Dep't of Employment & Training, 418 Mass.
855, 860 (1994); Lycurgus v. Director of the Div. of Employment
Sec., 391 Mass. 623, 627-628 (1984). Cf. Pyramid Co. of Hadley,
403 Mass. at 130 (handicapped persons' testimony of desire to
attend classes, parties, and community functions held on
mezzanine level and to supervise children using spaces on that
level constituted substantial evidence supporting board's
determination that substantial benefit would be gained by
providing elevator access to that level).
Although the board went on to consider the costs of
compliance in its decision, the determination that a substantial
benefit could be had by persons with disabilities by providing
access through the central porch ends the inquiry into whether a
26
variance may be granted. "A cost-benefit analysis is not
relevant if [as in this case] the board determines that there
would be substantial benefit. Only if there is no substantial
benefit does the issue of the cost of complying with the
regulation become important." See Hollister, 83 Mass. App. Ct.
at 523-524, quoting Pyramid Co. of Hadley, 403 Mass. at 131.
Accordingly, we need not address Hollister's claims, whether
credible or not, of the excessive cost of modification. The
board's denial of the variance was based on substantial
evidence, and we therefore will not disturb it.
Conclusion. The judgment of the Superior Court is
affirmed.
So ordered.