The Court’s principal holding is the obvious but often overlooked rule the various safe harbors for the design and construction of multi-family dwellings are a shield, not a sword. In Miami Valley the plaintiffs produced a typical expert report in this kind of case. It listed several hundred supposed accessibility barriers based on deviations from the original FHA Guidelines promulgated by HUD in 1991 along with the assertion that because the Guidelines are the least restrictive of the HUD recognized safe harbors the apartments did not meet any safe harbor standard. Based on this evidence the plaintiffs sought summary judgment. More
In a March 27, 2017 ruling Judge Richard Leon of the D.C. Circuit found a safe harbor in the Fair Housing Act that I haven’t seen referred to in any earlier published opinion. See, U.S. v. Mid-America Apt. Communities, Inc., 2017 WL 1154944 (D.D.C. Mar. 27, 2017). In the defense of FHA design / build cases the emphasis is usually on the statutory safe harbor in 42 U.S.C. §3604(f)(4), the ANSI A117.1 standard, or in one of the similar safe harbors recognized by HUD in 24 CFR §100.205(e). However, there is also safe harbor language in 42 U.S.C. §3604(f)(5), which provides that:
(5)(A) If a State or unit of general local government has incorporated into its laws the requirements set forth in paragraph (3)(C), compliance with such laws shall be deemed to satisfy the requirements of that paragraph.
(B) A State or unit of general local government may review and approve newly constructed covered multifamily dwellings for the purpose of making determinations as to whether the design and construction requirements of paragraph (3)(C) are met. More
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Building Codes, DOJ, municipal government, Public Facilities, Restaurants, Retail, Shopping Centers Tags: ada litigation, drive-by lawsuits, drive-by litigation, private lawsuits, restaurants, serial litigation
By Richard Hunt in Accessibility Litigation Trends, ADA FHA General, ADA FHA Litigation General, Apartments, Building Codes, FHA, Multi-Family Tags: Consent Decree, Construction, Department of Justice, DOJ, FHA
The Department of Justice announced in late July a settlement with a substantial multi-family developer in West Virginia that had managed over a decade or so to construct 23 apartment complexes that did not comply with the accessibility requirements of the Fair Housing Act (see the DOJ press release here). In addition to remediation costs, which appear to be substantial, the developer will pay $205,000 in damages and penalties and construct new accessible units. Like most FHA cases, it is a big deal.
One of my fellow bloggers has helpfully suggested that if the DOJ investigates a situation like this you need a lawyer “like me.” What developers “like you” really need is not to be investigated in the first place, and if investigated to not be liable. You can find a link to the consent decree in the DOJ press release, and the problems it lists are the same problems that appear over and over again in FHA lawsuits. Lawyers didn’t cause them, and lawyers really can’t prevent them. Developers, however, can. More
Special treatment in the name of equality – understanding the ADA and FHA reasonable accommodation provisions
One of the hardest things for ordinary people to understand about the ADA and FHA is that these statutes, which supposedly forbid discrimination, make it unlawful to treat everyone equally. To avoid “discrimination” under the disability related provisions of these laws businesses must give special treatment to those with disabilities. More