Making the Slope and Grade - the Department of Justice´s Aggressive New Posture on Accessible Design

The U.S. Department of Justice is aggressively pursuing extreme interpretations of accessibility design requirements in investigations of, and litigation against, major national developers of multifamily and single family housing. The alleged deficiencies include building, unit and sidewalk alterations that the industry has historically considered within expected "construction tolerances" and which would cost millions of dollars to alter. Recently, the Department has become focused on the percentage slope and grade of sidewalks, paths and parking areas, whose dimensions and contours change with the weather, seasons and naturally over extended periods time – particularly in the northern and southern parts of the country. No uniform or accepted standards exist on how such grades are to be measured or which tools are to be employed – i.e., smart tools, length of manual levels, how many feet apart measurements should be taken.

As the industry has learned, a developer cannot simply rely on an architectural or engineering firm’s assurances that the plans comply with accessibility requirements. If there is a design problem, the developer is liable and the architectural firm often has very limited professional liability insurance coverage. A prominent Midwest architectural firm told a developer client that certain federal requirements did not apply to the client’s newly designed apartment complex. Within a few months, after embarrassing themselves in a meeting before a state agency, the architect’s professional liability carrier paid almost $1 million to settle the design deficiencies on a single apartment project. Further, many architects have mistakenly assumed that state law requirements for the set-aside of a certain number of accessible units satisfy federal requirements.

Several different federal laws and regulations impact on the design and construction of housing. The first is the Fair Housing Act. 42 U. S. C. § 3604(f)(3)(C). A surprising number of developers and architects continue not to appreciate that the Fair Housing Act contains specific federal accessible design requirements that apply to apartment and condominium construction. The Fair Housing Act requires that every dwelling unit in an elevator building and every ground floor unit in a non-elevator garden style apartment and condominium contain certain accessibility features. In addition, the Fair Housing Act requires that certain public and common areas in multifamily housing facilities be designed to be accessible to persons with disabilities. This is a different and separate requirement from the more familiar scheme of the Americans with Disabilities Act (ADA), which focuses on setting aside a percentage of accessible units in certain types of lodging.

It is generally understood that Title III of the ADA (42 U. S. C. § 12181) applies to "public accommodations" and "commercial facilities," such as hotels, retail establishments and office buildings. However, Title III also applies to areas of multifamily projects that are open to the public such as leasing offices, parking and certain recreational facilities.

While regulations have been issued under the ADA, and Guidelines and Manuals have been issued under the FHA, there is very little case law interpreting the design requirements for housing. Generally, the following facilities are subject to accessibility requirements covered:

• rental apartments
• multi-unit condominiums
• attached single-level "patio" or "villa" homes
• attached multilevel homes in which the basement\attic is not "finished"
• timeshare units (depending on how sold and operated)
• certain recreational facilities

Generally, the following facilities are not subject to accessibility requirements:

• detached single-family homes
• multilevel (finished) apartment and condominium units
• two or more story attached townhomes

As previously noted, the scope of requirements for accessible housing under federal law is not settled. The language of the FHA itself sets forth a mixture of both vague and specific requirements: (i) readily accessible common and public use areas; (ii) doorways wide-enough to permit the passage of wheelchairs; (iii) accessible route into and through a dwelling; (iv) accessible light switches, outlets and environmental controls; (v) usable kitchens and bathrooms that allow maneuvering of a wheelchair; and (vi) reinforcements in bathroom walls to allow later installation of grab bars. [The HUD Guidelines (discussed below) recommends an accessible building entrance on an accessible route.]

The principal guidance is contained in the HUD Guidelines issued in 1991, the HUD Design Manual issued in 1996 and revised in 1998, HUD’s 1994 Q & A on the Guidelines and in recent HUD web-based training materials, as well as certain ANSI and other building code provisions. All of this commentary is supposed to be guidance on how to make housing accessible. However, the Department of Justice (DOJ) is taking the position in major cases that this "guidance" is in fact the minimum standards that developers are required to follow. This view is being reinforced in settlement agreements that the DOJ is entering into with developers who are unable, or unwilling, to undertake the expense of defending against DOJ’s positions. Of particular concern is the fact that developers involved in both the multifamily and single family home industries have agreed to provide multifamily accessibility features in new single family homes in order to settle cases. While one large builder agreed to do this a number of years ago to settle an early case – thought to be an anomaly – this renewed application of accessibility standards to single family construction has now re-emerged – even though there is absolutely no basis to require these design features under federal law.

It is not yet clear how these issues will eventually be resolved in the pending cases with the Department of Justice, which focus on multifamily properties. What is of most concern is the extreme reading of accessibility requirements for multifamily facilities under the FHA and ADA and the spill-over of those requirements into single family home construction. The following are the key areas under scrutiny that all builders should be aware may be challenged:

• the location of the accessible entrance to a dwelling, if it does not adjoin the parking area.
• 2" 10" standard doors, if they do not actually provide 32" clear opening
• the location of kitchen appliances, if they do not provide a wheelchair approach that is center-lined on the fixture
• the location of toilets, lavatories and vanities in bathrooms, if they do not provide a wheelchair approach that is center-lined on the fixture
• the placement of kitchen counters and islands, if the clearance between counters and the opposing base is not at least 40"
• minor variations that have heretofore been regarded as acceptable as constructions tolerances (i.e., no construction tolerances)
• a cross-slope for sidewalks that exceeds 2 percent at the time of measurement
• a running slope for sidewalks that exceeds 5 percent at the time of measurement
• paths among and between buildings and recreational facilities that are not accessible without regard to alternative access provided by vehicle and roads
• inaccessible paths leading to public roads and bus stops
• absence of lifts, sloped entry or transfer walls in certain types of swimming pools and the number and location of exercise equipment
• exterior doors without accessible levers and hardware or doors that require too many pounds of pressure to open
• inaccessibility of golf cart paths on courses and failure to revise ground rules to permit the use of single rider carts

There are several lawsuits and investigations pending around the country in which defendants are vigorously contesting the legal and factual bases of DOJ’s allegations. However, United States v. Compton Place Associates, et al. (M.D. Fla.), in which a Consent Decree among the Department of Justice and defendants was entered on August 6, 2003, was not among them.

In Compton Place Associates the DOJ’s complaint alleged that the owners, builders and architects of three large apartment complexes in the Tampa area (with a total of 416 ground floor units and extensive recreational facilities) discriminated against persons with disabilities by failing to design and construct those apartments and recreational areas so they are accessible to persons with disabilities as required by the Fair Housing Act and the Americans with Disabilities Act. Under the terms of the Consent Order, the defendants must: (1) retrofit the 416 covered units and the common use areas, so that they are accessible to persons with disabilities; and (2) design and construct all future multifamily housing in compliance with federal law.

In addition, the defendants agreed to build 420 single-family homes that are accessible to persons with disabilities (unless a buyer(s) of his or her own volition rejects the accessibility features). Among the more striking requirements agreed to by defendants related to future construction of the otherwise exempt single family homes. Specifically, defendants, or their affiliated companies, agreed to build 420 single-family houses that include the features of accessibility for persons with disabilities for multifamily housing set forth in the Fair Housing Act, 42 U.S.C. §3604(f)(3)(C) and the 1998 Fair Housing Act Design Manual including:

• regardless of changes in elevation on a particular lot, each home shall contain an accessible entrance that does not contain steps or slopes in excess of 5 percent or cross slopes in excess of 2 percent through the front door and/or garage door
• for multifloor dwellings, either the construction of at least one bedroom and bathroom on the ground floor or, if no bedroom and/or bathroom is constructed on the first floor, design and construction which provides for the construction or later installation of a residential elevator at the buyer’s expense
• offer construction of the following: (a) a "roll-in" shower, into which a person using a wheelchair may enter in his/her chair, in the bathroom of the buyer’s choosing; and (b) kitchen and bathroom counters built at a height of the buyer’s choosing; for up to 210 homes where the buyer requests these options, defendants shall provide the options at no cost to the buyer

You need good architects and engineers to design your housing community. But make sure that you also have a knowledgeable lawyer in determining which federal legal requirements apply and how to structure deals to minimize costs in achieving compliance.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.