Vol. 10, No. 3 Summer/Fall 2002	Previous Issues Subscribe to AT Messenger Download PDF Viewer
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Federal Accessibility Requirements for New Multifamily Construction

by Laura J. Waterland, Senior Staff Attorney, Disabilities Law Program

In enacting the Fair Housing Amendments Act of 1988 ("FHAA"), Congress extended the scope of anti-discrimination protection in housing transactions to people with disabilities[1]. Among the many aspects of this law, Section 3604(f)(3)(C) of the FHAA imposes certain design and construction requirements on newly constructed multifamily dwellings, which are described briefly herein[2]. Significantly, the FHAA does not require builders of new construction to provide fully accessible dwellings[4], nor does it require new construction[3] to comply with the United States Department of Housing and Urban Development's ("HUD") own set of design and construction guidelines, which are codified at 24 CFR Chapter I, Subchapter A, Appendices II and III ( the "Guidelines.")The primary HUD regulation implementing §3604(f)(3)(C) is 24 CFR §100.205.

Background

Section 3604(f)(3)(C) of the FHAA requires certain features of accessible design and adaptable design. These features are required for buildings completed for first occupancy after March 13, 1991 that meet the definition of "covered multifamily dwellings." These dwellings include all dwelling units in buildings containing four or more units, if there is an elevator; and all ground floor dwelling units in other buildings containing four or more units. These units include, without limitation, apartments or condominiums, single-story townhouses, timeshare units, college dormitories, and shelters that are intended to be residences (such as transitional housing).

The FHAA and HUD's implementing regulations reference the 1986 ANSI A117.1 American National Standard for Buildings and Facilities-Providing Accessibility for Physically Handicapped People. These standards, when used in conjunction with the HUD Guidelines, are an acceptable benchmark for compliance. Other "safe harbors" for compliance are:

1. HUD's March 1991 Fair Housing Accessibility Guidelines (cited above);
2. HUD's Fair Housing Act Design Manual (April 1998);
3. CABO/ANSI A117.1-1992, used in conjunction with the FHAA and HUD Guidelines;
4. ICC/ANSI 117.1-1998, used in conjunction with the FHAA and HUD Guidelines;
5. Code Requirements for Housing Accessibility 2000 (CRHA), approved and published by the ICC (International Code Council); and
6. International Building Code 2000 (IBC), as amended by the IBC 2001 Supplement to the International Code.

These requirements are in addition to any local building codes or requirements, unless local codes are more stringent than HUD's standards. Last year, building and construction organizations lobbied Congress unsuccessfully for changes to the FHAA accessibility requirements, complaining that the requirements are too unclear.

The Seven Requirements

The Guidelines outline seven design requirements. The first two requirements, relating to exterior routes and common areas, have the higher standard of "readily accessible." Design and construction requirements within the dwelling (Requirements III through VII) are referred to in the Act and elsewhere as "features of adaptable design."

Requirement I. Accessible Building Entrance. Covered dwellings must have at least one building entrance on an accessible route, unless it is impractical to do so because of terrain. An accessible route is a continuous unobstructed path connecting elements and spaces in a building or within a site that can be negotiated by a person with a severe disability in a wheelchair, that is also safe for others with disabilities. Routes include corridors, ramps, elevators, parking access aisles, curb ramps, and walkways. Builders must comply with ANSI A117.1-1986, Section 4.3 or a comparable standard for accessible route.

Requirement II. Public and Common Use Areas. Public and common use areas must be readily accessible and usable for people with disabilities. Public or common use areas include hallways, lounges, lobbies, bathrooms, laundry rooms, mail rooms, recreational areas such as pools, tennis courts or playgrounds, and rental or sales offices. Again, builders must comply with ANSI A117.1-1986 or a comparable standard.

Requirement III. Usable Doors. Doors in public and common use areas and primary entry doors of covered dwellings have higher accessibility standards than interior dwelling doors. Primary entry doors and doors in public and common use areas must be "accessible" as opposed to "usable." All doors designed to allow passage into and within the premises must be sufficiently wide to allow passage by persons in wheelchairs. Primary entry doors must meet ANSI requirements. For example, thresholds on primary entry doors can be no higher than 3/4". Secondary doors need only be "usable." Patios and decks made of impervious materials, such as concrete, are allowed to have a 4" drop or more, if required by local codes.

Requirement IV. Accessible Route. There must be an accessible route into and through the dwelling units, providing access for people with disabilities. This guideline requires an accessible route through the main door and throughout all of the rooms. The route must be sufficiently wide and lacking in abrupt changes in level. There is no requirement that it meet ANSI-type standards. The route need not go to the garage or basement. Additionally, this requirement requires the threshold at primary doors to be level or at most 1/2", depending on the exterior surface. Thresholds at sliding doors can be no more than 3/4".

Requirement V. Light Switches and Other Environmental Controls. All premises within the dwelling units must have light switches, electrical outlets, thermostats, and other environmental controls in accessible locations. Covered devices that must be in accessible locations include air conditioner and furnace controls, and outlets and light switches, but not circuit breakers, appliance controls or outlets dedicated to specific appliances. Appliances are not covered by the FHAA. However, in one recent case, a judge opined that if a kitchen is designed so that accessible appliances cannot be installed, a violation exists. Montana Fair Housing, Inc. v. American Capital Development, Inc., 81 F. Supp.2d 1057 (D. Montana 1999).

Requirement VI. Reinforced Walls for Grab Bars. All premises within dwelling units must contain reinforcements in bathroom walls to allow for later installation of grab bars around toilets, tubs, shower stalls and shower seats, where such facilities are provided. The grab bars themselves are not required [5]. All bathrooms must be reinforced for grab bars. There are specific guidelines for toilets and different kinds of showers and bathtubs.

Requirement VII. Usable Kitchens and Bathrooms. Dwelling units must contain usable kitchens and bathrooms such that an individual who uses a wheelchair can maneuver about the space. Again, neither room must be made fully accessible. Clear floor space must be made available in front of ranges, cook-tops and sinks. There are particular requirements for U-shaped kitchens. Shelving is not addressed in the guidelines. There is no requirement that washers and dryers, or other appliances, be accessible (unless they are in common use areas).

Bathroom designs must allow the person with the disability to enter, close the door, use the fixture, and exit. Specifications include an accessible route, accessible switches and controls, reinforced walls, maneuvering space within the room to enter, close and reopen the door and exit, and maneuvering and clear floor space to permit a person using a mobility aid to approach and use fixtures. The Guidelines give two choices of specifications for the maneuverability requirement. There is no requirement that there be sufficient space for a person in a wheelchair to turn around. There must be, however, clear floor space adjacent to each fixture.

Enforcement

HUD has the administrative responsibility of enforcing the FHAA[6]. An aggrieved party has up to one year from the date of the alleged discriminatory act to file an administrative complaint with HUD. HUD may also file a complaint upon its own initiative. The courts have taken a broad view of who can be liable under the act for failure to "design and construct" in accordance with the law. Owners, developers, architects and builders can all be sued under the Act[7].

After a complaint has been filed, HUD will investigate the matter and attempt conciliation between the parties. At the end of the investigation, HUD may either dismiss the complaint or file a charge if the case has merit. If a charge is filed, the case will go to hearing before an administrative law judge. HUD can also recommend to the United States Department of Justice that a civil case be filed, and will bring the case on the complainant's behalf.

Alternatively, the FHAA also allows private enforcement in civil action in state or federal court. Aggrieved parties have up to two years from the date of the alleged discriminatory practice to file a civil case[8]. There is no requirement that a person exhaust the administrative process, and a civil case can be filed when an administrative case is pending.

If the aggrieved party prevails at either the administrative level or in court, s/he may be entitled to actual and compensatory damages, injunctive or other equitable relief, attorney's fees and costs. Money may be ordered into escrow to pay for any structural modifications or retrofittings that must be made.

Delaware's Fair Housing Act, 6 Del. Code Chapter 46, is substantially equivalent to the FHAA, and also contains accessible and adaptable design requirements. 6 Del. Code §4603(a)(6). An aggrieved party can file an administrative complaint with the Delaware Division of Human Relations. The Delaware Fair Housing Act can be enforced administratively through the Human Relations Commission, through private enforcement action, or through enforcement by the Delaware Attorney General's office.

There have been many successful efforts to enforce the FHAA accessibility guidelines, although much work continues to be necessary. A typical case at the administrative level is Secretary, HUD v. Perland Corp., et al, 1998 WL 142159 (H.U.D. A.L.J., March 30, 1998). In Perland, the builder and partial owner of several apartment buildings was ordered to retrofit several ground floor apartments and common areas, to pay money into escrow for future work, and to pay civil penalties and damages to the organization that brought the case for the diversion of its resources in bringing the case.

One of the most comprehensive decisions to come out of the federal courts is Baltimore Neighborhoods, Inc. v LOB, Inc. 92 F. Supp. 2d 456 (D.Md. 2000). In BNI, an advocacy group successfully sued a developer and builder of a condominium complex for such violations as: failure to reinforce bathroom walls, insufficiently wide interior doors, a step up into ground floor units, twist door knobs on exterior doors, and inadequate clearance in bathrooms. The case settled against some defendants and a bench trial was conducted on some claims. The Court ordered retrofitting of common areas and interiors, and required the developer to place in excess of $300,000 in escrow to pay for the work.

In Montana Fair Housing, Inc. v. American Capital Development, Inc., 81 F. Supp.2d 1057 (D. Montana 1999), a number of defendants were found to be in violation of the FHAA for failure to build ground floor access routes, to make proper placement of environmental controls, and for building inaccessible common areas, including a playground.

Finally, the former owner of an apartment complex was ordered to pay to retrofit a unit to bring it into compliance with the FHAA, with escrow of funds. The plaintiff was also awarded compensatory damages for distress, and a small amount of punitive damages. See Balachowski v. Boidy, 2000 WL 1365391 (N.D. Ill., September 20, 2000).

Conclusion

While not as far-reaching as the ADA, the FHAA does provide a framework for acquiring a base level of accessibility for newly constructed multifamily dwellings. If these guidelines are implemented, and if people are willing to take steps to enforce these requirements when builders and developers fail to comply, then the stock of housing that can at least be easily adapted for use for people with disabilities should increase.

1. See generally 42 U.S.C. Chapter 45. The Americans with Disabilities Act, 42 U.S.C. §12101 et seq., does not cover housing, with the exception of common use areas that are made available to the public at large.

2. The actual requirements for new construction are quite complex; this article provides only a brief overview. You are advised to consult with an expert when evaluating a particular property for compliance. I have relied on the HUD Fair Housing Design Manual (1998).

3. There are different requirements for new construction or rehabilitation of housing financed with federal dollars.

4. The legislative history for the FHAA indicates that Congress intended to place only "modest accessibility requirements on covered multifamily dwellings." House Report No. 711, 100th Congress, 2nd Session, at 25.

5. Under other provisions of the FHAA, landlords must allow tenants with disabilities to make reasonable modifications at their expense. This would include installation of grab bars, accessible appliances, and other modifications. The landlord can require the tenant to restore the unit when the tenancy ends

6. HUD's regional office for Delaware is in Philadelphia, and complaints can be filed at Fair Housing Hub, United States Department of Housing and Urban Development, The Wanamaker Building, 100 Penn Square East, 12th Floor, Philadelphia, PA 19107. (215)-656-0663, (ext. 3260). Complaint forms and other information can be obtained through the regional office or on the internet at www.hud.gov. You can also file a complaint on-line

7. Doering v. Pontarelli Builders, 2001 WL 1464897 (N.D. Ill., Nov. 16, 2001); Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., 3 F.Supp.2d 661 (1998).

8. HUD takes the position that as long as a covered building continues to be in non-compliance, a complaint can be filed. There is some disagreement among the courts on this "continuing violation" theory. See Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., 40 F. Supp. 2d 700 (D. Md. 1999); But see Moseke v. Miller and Smith, et al, 2002 WL 1021103 (E.D. Va., May 17, 2002).