Furthermore, there is typically no review of ADA and FHA compliance during the permitting or certificate of occupancy (CO) process. “Municipalities not only do not regularly check plans for accessibility, they often disavow any responsibility to do so,” says Penny Newcomb Kronberg, a senior forensic architect for Irvine, Calif.-based Gafcon, a construction management and consulting firm that frequently provides expert testimony on FHA and ADA compliance issues.
Kronberg points to the City of San Francisco’s permitting office, which has a statement on its Web site explaining that a CO from the city is not a safe harbor under fair housing laws. “That leaves developers in a position that they are relying on design professionals to do the right thing, which is not always the case,” she explains.
In fact, Kronberg says that accessibility compliance is one of the most common errors she finds during plan reviews. When she points out that blueprints do not comply with federal accessibility laws, she says the most frequent response is, “I don’t have to comply.” That ambivalence is buttressed by plans that sail through code approval from local inspectors not required to enforce accessibility laws. In most cases, there is no one on the ground checking or approving new buildings for compliance to federal accessibility rules.
“As a developer or manager, you’ve got a grab bag of overlapping requirements,” says Charlie Edwards, a real estate practice leader at the Washington, D.C.-based law firm Womble Carlyle Sandridge & Rice. “Just because you got a CO from the local guy does not mean you won’t be targeted by HUD, DoJ, a public interest group, or private plaintiffs who contend that you have got to do more. You are not protected because someone says you are in compliance, regardless of who that someone is.” All too often, Edwards says, the first time an apartment owner is likely to become aware of an infraction is when papers are served or a federal agent shows up.
This confusion leaves the door open for individuals and advocacy groups to pursue litigation when local agencies fail to spot infractions at the point when they can be corrected—during construction. “No one wants to talk about accessibility because no one wants a target painted on their chest,” says Greg Golick, vice president of construction for Camden Property Trust, a Houston-based REIT that owns and/or manages more than 63,300 apartment units. Golick should know—his firm was involved in a landmark accessibility settlement in 2001 with the DoJ involving accessibility issues at eight Las Vegas apartment communities. Camden ultimately paid nearly $2 million to retrofit the sites, in addition to reimbursing individual renters who suffered damages $25,000 a piece, according to DoJ records.
“Multifamily operators shy away from the subject because there are so many interpretations, so many gray areas,” explains Thomas Cox, managing principal for TCA-Arch, an Irvine, Calif.-based architectural design firm specializing in multifamily communities. “Even the design professionals and consultants are afraid, and they typically [aren’t] pulled into litigation. If you are a multifamily developer looking at accessibility, you are essentially operating in a climate of fear, and the byproduct of that fear drives costs up and livability down, for people with and without disabilities.”
PRIVATE GROUPS TAKE MATTERS INTO THEIR OWN HANDS Kendrick of HUD takes issue with multifamily firms that cry uncle on perceived regulatory complexity. From 1998 to 2002, Kendrick served as a regional administrator for the District of Columbia Housing Authority where she managed 2,500 public housing units. “I’ve dealt with all of the same issues when I was with the housing authority,” Kendrick offers. “At the same time, HUD is going to follow what Congress dictates. This is the law.”
In particular, Kendrick recommends real estate and construction professionals become well versed in the rules that apply to the accessible design of multifamily properties after March 1991, as well as the laws that enforce reasonable accommodation and reasonable modification. “We’re not bad people here at HUD, and we are not hiding anything,” she adds.
In fact, for all intents, HUD is taking the first step when it comes to education and outreach. In addition to providing extensive information on its main Web site, HUD maintains another site expressly devoted to FHA compliance, mans a toll-free accessible design hotline, and holds regional roundtables in conjunction with the DoJ and industry stakeholders. “I’m a lawyer, and yes, I think enforcement is a great tool, but to me, it is more important that people are educated and striving to make housing accessible,” Kendrick says. “No, I can’t get to every single apartment unit in the United States. You can sit back and say, ‘Ha ha, she can’t get to me’; but if I can’t get to you, somebody else will.”
Lately, that somebody else has come from the private sector in the form of advocacy groups under HUD’s $19.8 million Fair Housing Initiatives Program (FHIP), which funds groups that play a triple role—education, outreach, and enforcement. These groups, which are often accused of having a litigious M.O., have recently targeted firms that either lack the resources to fight complaints or are large enough to settle in light of allegations. While FHIP groups are intended to play a vital educational role, HUD is quite clear that their purpose is also to test properties for compliance and assist alleged victims in filing complaints. The question is whether the empowerment of these groups as both educators and enforcers clouds their role in the ongoing quest for fair housing.
