safe-harbor1In 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.

In Mid-America the government argued for a presumption that if the defendant’s apartment complexes did not meet a particular safe harbor they violated the design/build requirements of the FHA.* Judge Leon was not inclined to turn the shield of a safe harbor into a sword under any circumstances, but he noted in particular that if the apartment complexes had been permitted under local codes that incorporated FHA accessibility requirements then it should be presumed that they were accessible. As he wrote:

Congress expressed the clear preference that state and local jurisdictions be allowed to define accessibility in this context and I would review the exercise of that authority with due deference.

Only if the government could show a problem with the local permitting regime would it be able to shift the burden to the defendant to prove accessibility:

The Government does not shift the burden of production on any individual building, therefore, until it explains how the permitting regime for that building did not comply with the FHA or, if it did comply, how a designer or builder such as Post either evaded the permitting regime or wrongfully obtained a permit.

Developers have wondered for years how they could get a certificate of occupancy under a code that has all the requirements for accessibility under the FHA and still find themselves in violation of the FHA. Judge Leon’s answer is simple: Unless there was a flaw in the permitting system a building with a CO under the right kind of code does meet the FHA’s requirements. Since most local codes are based on some version of the International Building Code, which incorporates one of the versions of ANSI A117.1, most permitted buildings are in presumptive compliance with the Fair Housing Act.

Judge Leon’s opinion does not say what the government or any plaintiff might do to overcome the presumption in favor of local authorities, but I have no doubt the government’s answer will be that if there are any failures to meet the applicable version of ANSI A117.1 then by definition the permitting process is flawed. There is, however, an easy retort. We are talking here about safe harbors. When local authorities look for accessibility they are entitled to exercise some discretion in determining that a feature that falls short of the safe harbor is nonetheless accessible, especially since different safe harbors have different standards. Local authorities should have discretion to determine that minor variations don’t make an apartment inaccessible. HUD and DOJ prefer to use a single version of ANSI A117.1 compliance primarily for convenience. It takes time and money to exclude compliance with every safe harbor, so choosing an arbitrary and usually stricter safe harbor makes prosecution easier and defense harder. It

If the government can show there is a problem in the permitting regime Judge Leon’s decision does have a  burden shifting element that may require the defendant to prove accessibility. This can easily lead to a battle of experts that has no resolution short of trial. See, United States v. JPI Const., L.P., 2011 WL 6963160 (N.D. Tex. Nov. 10, 2011). Here too Judge Leon has a chance to require the plaintiff to meet a logical burden of proof. If the most relaxed safe harbor has been met, it does not make sense to claim a building does not meet the design/build requirements of the FHA. The Courts should require that the plaintiff, to meet its initial burden, both show that the local permitting regime is seriously flawed and show that any given feature does not meet any safe harbor standard. Only then should the defendant be obliged to produce evidence of accessibility.

If Judge Leon applies an appropriate amount of deference to local decisions this case will be a victory for developers who hire good contractors, work from good plans and get certificates of occupancy under the appropriate local codes. Developers who have tried to the right thing should not be subjected to litigation because DOJ or a professional plaintiff is able to find some stricter standard that is not met.

NOTE:  The most common “rule” for determining whether the FHA design/build standards are met holds that once the plaintiff shows non-compliance with any arbitrarily chosen safe harbor the defendant must show compliance with a “recognized, comparable, objective measure of accessibility.”U.S. v. Noble Homes, Inc., 173 F.Supp. 3d 568, 574 (N.D. Ohio 2016). This means, in effect, compliance with one of the other safe harbors. Laid over this shifting burden of proof is HUD’s irrational requirement that a given project meet all the requirements of any one safe harbor rather than meet some requirement of any safe harbor.