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Five Misconceptions about The Americans with Disabilities Act

This past summer, the country celebrated the 30th anniversary of the passage of the Americans with Disabilities Act. Despite the progress of the past few decades, there are still misconceptions about what the law requires for buildings and facilities. Below are five of the most common misconceptions our consultants encounter.

Cover pages of the ADA Title III Regulations and the 2010 ADA Standards for Accessible Design1.      All buildings that predate the ADA are exempt from accessibility requirements.

Unlike building codes, the ADA does not contemplate the concept of “grandfathering.” Included in the ADA regulation is the ongoing obligation for barrier removal, despite the age of a building. Specifically, if a barrier to access exists in a building that predates the ADA, then there is an obligation to remove the barrier if it is readily achievable to do so. Readily achievable means that fixing the barrier does not involve too much difficulty or expense. Such determinations must be made on a case-by-case basis and consider many factors, including financial resources.

2.      Following the accessibility requirements of the building code will satisfy the accessibility requirements of the ADA.

Even though the 2010 Standards for Accessible Design (the technical standard referenced by the ADA) is similar to the technical standards referenced by many building codes (e.g., A117.1 Standard for Accessible and Usable Buildings and Facilities), they are mutually exclusive. Compliance with the accessibility requirements of the building code does not satisfy compliance with the accessibility requirements of the ADA; and, vice versa. The general rule of thumb is to apply all applicable laws, codes, and standards and comply with the most stringent requirement.

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Fair Housing – What’s Your Safe Harbor?

Compliance with the accessible design and construction requirements of the Fair Housing Act (FHA), a federal civil rights law, has significantly improved since the early 1990s when the regulations were promulgated. Unfortunately, a quick search of recent news articles will reveal that noncompliance with basic FHA requirements continues to be a problem in newly constructed multifamily projects nationwide. Owners, developers, architects, and others are still cited for noncompliance with the FHA’s seven design and construction requirements despite the fact that it has been approximately 30 years since those requirements went into effect.

Based on our experience, one of the contributing factors in continued noncompliance is the common misconception that following the accessibility requirements of a building code will result in compliance with the FHA. It is important to note that if the accessibility requirements of one of the ten HUD-approved safe harbors are not incorporated into the design of a multifamily development, and the project complies only with the accessibility requirements of a building code, then the risk of noncompliance exists.

Throughout the 1990s and early 2000s, many building codes fell far short of FHA compliance. For example, many developers in New York City relied on compliance with NYC’s Local Law 58 of 1987, believing that they would also be compliant with the Fair Housing Act. Unfortunately, this resulted in widespread noncompliance. LL58 permitted step up terraces and small bathroom layouts with inswinging doors, among other design elements that did not satisfy FHA compliance. The problem has certainly become less pervasive in more recent years as the ICC and local jurisdictions have become aware of shortcomings in their code requirements, but there are still some FHA criteria that have fallen through the cracks in even the most up-to-date building codes. (more…)

Five Misconceptions about Fair Housing Act Design and Construction Compliance

From “If I comply with the building code, then I comply with the Fair Housing Act” to “Everything is adaptable, so it doesn’t need to work day one, right?” – our accessibility consultants have heard it all. Here are five of the most common misconceptions about the Fair Housing Act that we come across on a regular basis…

1.  Following the accessibility requirements of the building code will satisfy the design and construction requirements of the Fair Housing Act.

Not true. Following the accessibility requirements of the building code may not always satisfy the design and construction requirements of the Fair Housing Act. Building codes and federal laws are mutually exclusive; a building department or building official is responsible for ensuring compliance with the code – not the law. And, HUD is responsible for enforcement of the Fair Housing Act – not building codes. Meeting the requirements of one may not always satisfy the requirements of the other. There is only one code, i.e., the International Building Code (2000, 2003, and 2006 editions, with a few caveats) that are HUD-approved ‘safe harbors’ for compliance with the design and construction requirements of the Fair Housing Act. Later editions of the code are not approved by HUD as meeting the requirements of the FHA. And, any edition of the International Building Code adopted by a local jurisdiction and edited to fit the context of the local jurisdiction is not a safe harbor for compliance. The general rule of thumb is to apply the accessible design and construction requirements of the code and the law and comply with the most stringent provision.

2.  Meeting the design and construction requirements of the Fair Housing Act is not required at the time of design and construction. Because the Fair Housing Act permits adaptability, modifying a feature to accommodate a resident’s particular need is the best way to comply with the Fair Housing Act.

Not true. Meeting the design and construction requirements of the Fair Housing Act at the time of design and construction is required. To say that its permissible to meet the requirements by adapting features as needed and only upon request makes the design and construction requirements of the Act meaningless. Adaptability is permitted by the law, but only after the minimum design and construction requirements are met. And, what is permitted to be adapted post construction is included in the technical standards. For example, a forward or parallel approach is required to be provided at a kitchen sink in a dwelling unit. In order to accommodate the front approach, the base cabinet must be designed to be removable, i.e., adaptable. Adaptability in this case is contemplated by the requirements for usable kitchens. On the other hand, a light switch is required by the Fair Housing Act Accessibility Guidelines to be installed below 48 inches above the finished floor. The Act does not permit the light switch to be installed higher and modified as requested. To install a light switch higher than 48 inches above the finish floor is in violation of the design and construction requirements of the Fair Housing Act Accessibility Guidelines. Adaptability in this case is not contemplated or permitted by the requirements for usable kitchens.

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Environments for Aging: Designing Better Senior Housing

The 2019 Environments for Aging Conference took place last month in Salt Lake City, UT.

Last month, I had the opportunity to attend the Environments for Aging conference in Salt Lake City. Hundreds of professionals involved in the complex world of senior living gathered to learn from each other and to explore products and services that are designed for the senior population. It was not surprising to see the level of interest in the event; according to the US Census Bureau, 20 percent of the current US population will be 65 or older by 2029. The Baby Boomer generation, which accounts for the majority of that 20 percent, is moving into their 70s and are beginning to consider how and where they want to age. Some Boomers prefer to remain in their current homes in the communities that they helped build. Others want to move into smaller homes or prefer to transition to senior living communities. Many of these senior living communities are popping up both in suburbia and active urban centers in response to the current trend in senior housing preferences.

There are many senior housing typologies: among the most common are independent living, assisted living, and dementia care. Each type of living arrangement has specific needs that must be addressed from a design perspective.

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Why the Whole Building Approach Matters

At Steven Winter Associates, Inc., we support the whole building approach to design and construction by doing our best to ensure that projects meet sustainability, energy efficiency, and accessibility requirements, among other design strategies and goals. From our perspective, accessibility compliance is a key factor in determining whether a project is truly sustainable and efficient.

The Whole Building Approach to Design (from the Whole Building Design Guide, “Design Objectives”)

As an example, I was recently contacted by a New York City-based housing developer. They received a letter from an attorney stating that three of their recently constructed projects in New York City were “tested” and found to be noncompliant with the accessible design and construction requirements of the Fair Housing Amendments Act and the New York City Building Code. SWA toured the buildings and confirmed that the allegations were in fact true. We identified issues such as excessive cross slopes along the concrete entrance walk, the presence of steps between dwelling units and their associated terraces, the lack of properly sized kitchens and bathrooms, the lack of compliant clear width provided by all user passage doors, etc. It quickly became apparent to us and to the developer that the cost of the remediation required to bring the projects into full compliance would be astronomical.

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A Tour of DURA, New York City College of Technology’s Urban and Resilient Solar Decathlon Home

Last week, I had the opportunity to visit the DURAhome, New York City College of Technology’s entry for the 2015 Solar Decathlon. This project is currently nearing completion at the Brooklyn Navy Yard. Over the past 3 months, more than sixty students have toiled around the clock to finish construction in time for the contest, which will take place October 8-18 in Irvine, California. The Solar Decathlon is the U.S. Department of Energy’s biennial competition that challenges college and university student-led teams to design and build solar-powered net-zero homes that are affordable, energy-efficient, and aesthetically appealing.

TeamDURA’s focus was to create a prototype of post-disaster housing that is suited for New York City’s high-density urban environment, and could serve as a shelter in the aftermath of a catastrophic storm. As such, multifamily, multistory solutions were preferable to traditional single-family trailers, which have larger footprints. DURAhome consists of several prefabricated modules that can be packaged and shipped on standard-sized tractor trailers for quick response at low cost. These flexible modules can then be joined in standalone configurations or stacked for multifamily uses. Like the city, the DURAhome is diverse, urban, resilient, and adaptable.

NY City Tech Freshman Langston Clark continues work on DURA into the early evening.

NY City Tech Freshman Langston Clark continues work on DURA into the early evening.

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The Future of Accessible Housing

Fair Housing Act Happy Fair Housing Month! This April marks the 47th anniversary of the Fair Housing Act. On April 11, 1968, President Lyndon B. Johnson signed the FHA into law, making it illegal to discriminate in the sale or rental of housing, among other transactions, based on race, religion, color, sex, and national origin. However, it wasn’t until 20 years later (1988) that the FHA was amended to include protections for people with disabilities, which instituted a host of accessibility regulations that are still the standard for multifamily housing design today.

As our country and politics evolve, I wonder how an additional 20 years will change the face of accessible housing. There are many initiatives that challenge us to look beyond the current standards written into federal laws and building codes. The Visitability Movement, for example, led by Eleanor Smith, champions a modest level of accessibility for single family homes, which currently are not required by federal law to meet any level of accessibility (see SWA staff present with Ms. Smith at the 2015 AIA National Convention). In addition, the U.S. Access Board and American National Standards Institute (ANSI), two parties responsible for writing accessibility standards, continue to expand on accessible design, particularly as the disability rights movement continues to shape public policy, allowing for increased levels of accessibility.

Equal Opportunity LogoWe are also seeing a trend in the voluntary incorporation of accessible features in design initiatives such as Universal Design, which promotes usability for all ages and abilities, as well as aging in place initiatives. SWA has been compiling an accessible product directory (to be released soon) that features a wide range of sleek and modern products that enhance accessibility without compromising style. We’ve also been on the cusp of ventures that address health and wellness through design, such as the WELL Building Standard, which promotes accessibility as a main component of a building occupant’s health and wellbeing.

We at SWA will certainly celebrate this Fair Housing Month and all the progress made towards housing that is inclusive to all; however we would be remiss if we didn’t think about what’s in store for accessible design in the future. We look forward to learning and growing with our clients and partners as we continue to bring accessibility to the built environment.

Let us know how the Fair Housing Act has made a positive impact on your life and what you hope to see in the future. Follow us on Twitter and use #FairHousingMonth to follow and contribute to the conversation!

The Access Files – The Truth is Out There

Peter Stratton

Peter Stratton, SWA’s Director of Accessibility Compliance and Consulting

SWA Access is the quarterly publication created by SWA’s Accessibility Compliance and Consulting Group to convey the importance of, and help  demystify the often complex world of accessible design, construction, and compliance. After all, as the group’s director, Peter Stratton, often says, “Sustainable Design is Accessible Design.”

Each edition of the newsletter features a section that answers specific questions asked during project work or public seminars. We will periodically post these items to Party Walls, but if there’s something you would like answered now, you can post your question in the comment section below and someone from SWA’s accessibility team will answer them (and in a timely manner!)

Q: Under the Fair Housing Amendments Act, are multifamily housing developments that utilize valet parking still required to provide a total of 2% accessible parking spaces serving covered dwelling units?

A: Yes. the guidelines require that accessible parking be provided for residents with disabilities on the same terms and with the full range of choices that are provided to all residents. Providing valet parking in lieu of self parking does not change this requirement. A minimum of 2% of the parking spaces that serve covered dwelling units must be accessible. Local code requirements may be more stringent when it comes to requirements for accessible parking. Find more information by visiting:
Supplement to Notice of Fair Housing Accessibility Guidelines: Questions and Answers about the Guidelines.

Q: Is it true that HUD now accepts the 2010 ADA Standards (2010 Standards) as an alternative to the Uniform Federal Accessibility Standards (UFAS) for compliance with Section 504 of the Rehabilitation Act of 1973 (Section 504)?

A: Yes. HUD issued a Notice, effective May 23, 2014, that permits recipients of Federal funding to use the 2010 Standards as an alternative to UFAS on projects subject to Section 504. However, HUD has deemed certain provisions of the 2010 Standards to provide less accessibility than is currently required by UFAS. So, be sure to learn about the exceptions if you choose to apply the 2010 Standards to your next project. HUD’s Notice remains in effect until the agency formally adopts an updated accessibility standard for compliance with Section 504.