“It’s outrageous. They were told, ‘If you’re going to use a wheelchair, you can’t live here anymore.’”
On July 25, 2011, the developer and architect of a 143-unit residential apartment complex in New York, New York, entered into consent decrees with the Department of Justice resolving a lawsuit that alleged they violated the Fair Housing Act (FHA) in the design and construction of The Melar, a 22-story apartment building on the upper west side of Manhattan. The lawsuit, filed on September 30, 2010, alleged that the defendants failed to provide kitchens and bathrooms that are usable by people with disabilities, failed to provide accessible routes into and within the apartment units, failed to make public and common areas accessible for people with disabilities, and located light switches, electrical outlets, and other controls in inaccessible locations. The lawsuit also alleged that The Melar’s design and construction violated the accessibility provisions of New York City law.
The consent decree with L&M 93rd Street LLC, the developer and owner of The Melar, requires the company to pay all costs related to retrofitting common areas to make them accessible to people with disabilities and reconfiguring the bathrooms, kitchens, and closets in apartments; some of the retrofits to the apartments are mandatory and some are upon the request of the tenants. In addition, the developer will establish a fund in the amount of $288,300 to make additional improvements for the benefit of people with disabilities.
The L&M consent decree also establishes a settlement fund of $180,000 to compensate individuals harmed by the lack of accessible features at The Melar. Anyone who believes that he or she may be entitled to monetary relief should write to the Chief of the Civil Rights Unit at the U.S. Attorney’s Office, 86 Chambers Street, Third Floor, New York, New York, 10007, or contact the Civil Rights Complaint Line at 212-637-2987 (voice) or 212-637-0039 (TTY).
The consent decree with Costas Kondylis & Partners, LLP, the architectural firm that designed the building, as well as the L&M consent decree, requires both companies to undergo training on the requirements of the FHAA and pay a civil penalty to the United States in the amount of $40,000 each.
“The Fair Housing Act is an important safeguard for those with disabilities and helps ensure that they can enjoy full use of and access to their living spaces,” said Manhattan U.S. Attorney Preet Bharara. “Architects, owners and developers play a key role in making sure that these requirements are met, and when they fail to do so, this Office will hold them accountable.”
From the October 2009 Universal Design Newsletter
By: Denise Hofstedt
While the Fair Housing Act has been responsible for adding more than 1.6 million accessible housing units across the country over the last 19 years, it is often blasted for its shortcomings.
Disability advocates claim Fair Housing units are difficult to find and once found are access-ready, but not very accessible. Accessibility consultants agree that often the accessibility provided in the units is inadequate to meet the needs of many users. Developers, architects and builders say that the overlapping requirements are confusing and definitive answers to conflicting criteria questions are hard to secure. It seems that everyone has a complaint when it comes to the FHA design standards.
Originally passed in 1968 and administered by the US Department of Housing and Urban Development (HUD), the FHA prohibits housing related discrimination against people based on race, color, religion and national origin. When amended in 1988, the law was changed to prohibit discrimination against people because of disabilities.
The FHA requires that “covered multi-family dwellings” built for first occupancy after March 13, 1991, be designed and constructed to include certain features of accessible design. The act’s requirements apply to multi-family units that have elevators, and ground floor units in other buildings consisting of four or more units. The FHA’s design and construction requirements apply to privately owned housing as well as federally or publicly assisted housing. This includes, for example, apartments, condominiums, dormitories, assisted living developments, time-sharing properties, and homeless shelters when used as a residence.
The FHA’s seven basic design and construction requirements are written in straightforward performance language but lack specfics:
1. An accessible building entrance on an accessible route.
2. Accessible common and public use areas.
3. Usable doors (usable by a person in a wheelchair).
4. Accessible route into and through the dwelling unit.
5. Light switches, electrical outlets, thermostats and other environmental controls in accessible locations.
6. Reinforced walls in bathrooms for later installation of grab bars.
7. Usable kitchens and bathrooms.
Perhaps intended to make compliance easier but actually creating further confusion, HUD recognizes 10 “safe harbors” – other codes and guidelines that HUD considers to be equal to the FHA.
Among the safe harbors are the HUD Fair Housing Accessibility Guidelines, ICC/ANSI A117.1 (1992, 1998 and 2003) and the International Building Code (2000 and 2003). But picking and choosing among the code criteria creates a compliance conundrum. In order for a unit to be protected under a safe harbor, the particular code must be applied in its entirety.
Problems arise if the safe harbor being used is silent on an issue or confl icts with another code – neither HUD nor any other enforcement entity will say defi nitively that a particular solution is compliant.
To try to educate the public, HUD has established Fair Housing First, an initiative that offers instructional programs, online web resources, and a toll-free information line for technical guidance and support. However, the advice provided by the program won’t give the user legal cover. According the Fair Housing First website, www.fairhousingfi rst.org , “The information, materials, and technical assistance are intended solely as informal guidance and are neither a determination of legal responsibilities under the Fair Housing Act nor binding on any agency with enforcement responsibility under the Fair Housing Act.”
According to housing consultant Louis Tenenbaum, Potomac, MD, newly built Fair Housing Act units are easy to identify, but once the units are in the marketplace they “disappear.”
“If you’re lucky enough to find a Fair Housing unit, you can get in the door,” he says. But most people with disabilities find that the units actually need further modifications. Depending on a resident’s needs, the adjustments can range from minor to significant.
According to accessibility consultant John P. S. Salmen, AIA, the criteria included in the HUD Fair Housing Act Accessibility Guidelines do not provide accessibility for everyone. For example, the guidelines call for 40 inches between opposing counters in certain kitchens. This does not allow space for someone using a wheelchair to turn around. The guidelines also don’t require wheelchair turn around space in the bathroom.
“The Fair Housing Act is a great idea,” says Salmen. “But the access provided is not that great, the requirements are convoluted and a lot of people are running into problems.”
Design and Construction Industry
With several recent high profi le FHA lawsuits and big settlements involving builders, architects and developers, it is clear that there is a lack of understanding of the law even after nearly two decades.
Often builders who have violated the law claim they didn’t know the project was covered under the FHA, or say that they thought if the local building inspector signed off on their project they were in compliance with all applicable requirements.
Those excuses seem implausible to HUD Assistant Secretary for Fair Housing and Equal Opportunity John Trasvina. “The law has been in place 19 years, we hold training and have resources available,” by phone and on the Fair Housing First website, www.Fairhousingfirst.com “‘I didn’t know’ rings hollow,” he says.
In a HUD study on FHA compliance released in 2004, architects blamed contractors for non compliance and contractors blamed architects. The architects said that contractors are used to doing things in a “conventional way” and that contractors often do not pay attention to what is indicated on the plans. Contractors countered that non compliance is a result of architectural plans that do not correctly incorporate the design and construction requirements of the act.
“The National Association of Home Builders (NAHB) and our members support the Fair Housing Act and efforts to make housing accessible,” says Ed Sutton, NAHB Senior Vice President, Construction, Codes & Standards. “Historically, a major problem faced by builders in FHA compliance has been the lack of clear guidance with regard to the construction requirements and a reliable means for enforcement. That is why NAHB worked with HUD, the International Code Council, and other stakeholders to incorporate the accessibility requirements of the FHA into the 2001 Supplement to the International Building Code and subsequent editions. As a result, FHA accessibility requirements are addressed during the design and construction of housing, thereby greatly reducing compliance issues.”
Contractors and architects involved in the HUD study on how to address non compliance did agree that there should be FHA inspections and that building codes and federal requirements for accessibility should be consolidated into one source document.
According to Assistant Secretary Trasvina, the demand for Fair Housing units is expected to increase because of aging demographics and more disabled veterans who will need accessible housing.
“We want to make this work,” said Trasvina.