Accessibility Services to offer New Course
By Linda Stango, Senior Architect

To coincide with the adoption of the updated New York State Building Code and the New York City Construction Code, United Spinal Association will begin presenting a new continuing education program which reflects the changes in the both codes.  The program  will focus on state and federal accessibility requirements impacting both commercial and residential occupancies.  Attendees will gain an understanding of which accessibility requirements are most restrictive and which represent a safe harbor.  In addition, this seminar will provide attendees with an overview of the revised ADA/ABA Accessibility Guidelines and its harmonization with model codes as they relate to accessibility requirements.  This course will focus on problem application areas in commercial facilities, accessibility requirements in existing facilities, types of dwelling units in residential occupancies and life safety issues.

If you are interested in learning more about this program or attending a seminar, please contact Linda Stango at 917.921.2766 or via email at lstango@unitedspinal.org.   

The Fair Housing Act applies to the new construction of multifamily housing facilities with four or more units if the facility was occupied after March 13, 1991 or the last building permit or renewal thereof was issued by a state, county, or local government on or before June 15, 1990.  The following accessible design features apply to all units in buildings with elevators and to all ground floor units in buildings without elevators:

• All doors into and within all premises must be wide enough to allow passage by persons in wheelchairs.
• All premises must contain an accessible route into and through the dwelling unit.
• All light switches, electrical outlets, thermostats and environmental controls must be located in an accessible location.
• Reinforcements in the bathroom walls for later installation of grab bars around toilet, tub and shower must be provided.
• Usable kitchens and bathrooms must be provided so that a person who uses a wheelchair can maneuver about the space.

Also, at least one building entrance must be on an accessible route and all public and common use areas must be readily accessible.

The FHA does not apply to the renovation or alteration of existing housing facilities.

Thus, the question we are now facing 17 years after the effective date of the Fair Housing Act is what is the responsibility of builders, owners, and operators of covered housing facilities that were designed after the effective date but did not comply with some or all of the accessible design features?

The answer to this question is going to depend on the location of the housing facility as different courts have reached different decisions.  Most courts have used the continuing violation theory.  Meaning if the housing facility was designed and constructed with features that violated the Fair Housing Act and its Accessibility Guidelines then the violation continues until it is remedied.  This has been the decision in cases brought in many states including Maryland, Montana, and New York. 

Other courts have held that the Fair Housing Act requires a complaint be filed within two years of when the violation occurred so, in other words, the case against the builder, developer, etc. must be filed two years after the facility was built.  This time frame is a little harder to ascertain a specific date as large housing facilities are often constructed in phases.  One court in Kentucky attempted to tackle this issue and held that the two year period began to run after the last unit was sold.

Many cases have settled before the court could render a final decision.  One of the largest settlements was against Archstone-Smith Trust.  The settlement required a survey of 71 apartment complexes with a total of 12,000 units covered by the Fair Housing Act throughout the United States, removal of the barriers at a cost estimate of $20 million dollars, and 1.5 million in attorney fees (not including the cost of Archstone-Smith Trust’s attorney’s fees), court costs, and damages.

A prudent owner of a housing facility covered by the Fair Housing Act should have an independent assessment done of its facility for compliance with the Fair Housing Act.  This will bring peace of mind if all features comply and will cost less money to find and rectify any violations rather than wait to defend a legal action.

By John Rooney

The Fair Housing Amendments Act of 1988 is an expansion of discrimination prohibitions based on race, color, national origin religion and sex to people with disabilities and familial status.  This affects builders, designers and developers because the amendments not only apply to policies but also the design and construction of multi-family housing.

In short, the Fair Housing Act (FHA) applies to new construction of multi-family housing that consists of four or more dwelling units. Multi-family housing built for first occupancy after March 13, 1991 is required to comply.  There is a misconception that compliance with FHA is based on federal funding; however the law pertains to multifamily housing whether the funding is public or private.  Please note that the presence of federal funding for housing will required compliance with the Uniform Federal Accessibility Standards (UFAS).

One aspect of our work in Accessibility Services is to assist designers, developers and builders with FHA compliance.  In our efforts to do this we provide training, plan review and site reviews.  There are specific compliance issues that we have come across numerous times; one of them is the requirement to provide accessible routes on building sites. The question of where they are required is the purpose of this article.

Site Arrival Points:

The FHA Guidelines require an accessible route to be provided from site arrival points.  It is important to determine how people will arrive at the site in order to determine where accessible routes are required.  Site arrival points include public transportation stops, accessible parking spaces, accessible passenger loading zones and public streets or sidewalks.  An accessible route is required from site arrival points to accessible building entrances.  An exception to the required aforementioned accessible routes is applied if doing so is impractical to do.  Site impracticality is based on difficult terrain or unusual site characteristics such as locations in a federally designated flood-plain or coastal high-hazard area.  There are site tests found in the Fair Housing Act Design Manual that can be used to determine whether the exception can be applied.  This manual is a great resource and can be found online at the following link: www.huduser.org/publications/destech/fairhousing.html

Accessible Site Facilities:

The FHA Guidelines require an accessible route from dwelling covered by the act to all public and common use areas.  Examples of facilities required to be served by an accessible include -but not limited to- exterior mailboxes, exterior trash disposal areas, playgrounds, swimming pools, recreation areas and clubhouses.  An accessible route is not required between buildings that only contain dwelling units covered by the FHA unless one of the buildings contains a facility or amenity, e.g. a laundry room that is shared by the covered buildings.  The FHA Guidelines permit the use of a vehicular route in place of an accessible pedestrian route between covered buildings and public or common use site facilities in some situations.  When the finished grade exceeds 1:12 or other physical obstructions -outside the control of the owner of the development- prevent the installation of an accessible route between covered dwelling units and public or common use areas then a vehicular route is permitted.  The use of the vehicular route in lieu of an accessible route requires the provision of accessible parking spaces at covered dwelling units and the provision of accessible parking spaces at each common or public use facility not served by an accessible pedestrian route.

An often overlooked requirement of the FHA is the provision of exterior accessible routes from site arrival points and accessible routes that serve public and common use facilities on a site. It is a great benefit to consider these issues in the initial planning stages of Multi-family dwelling units covered by the Fair Housing Amendments Act to ensure compliance.

New Initiatives To Expand Accessibility In N.Y.C.
By Dominic Marinelli
Click here to read the article PDF.

As United Spinal has previously reported, Type A units required in alterations to apartments will no longer be required in the 2007 edition of the International Building Code (IBC).  To respond to proponents of the code change eliminating this requirement,
United Spinal Association has worked with other disability organizations in drafting a proposal that will clarifying when these adaptable features will be required - when more than twenty (20) units are altered, 2 percent will have to provide Type A features.

3409.8.8 Type A dwelling or sleeping units. Where more than 20 Group R-2 dwelling or sleeping units are being altered or added, the requirements of Section 1107 for Type A units and Section 907 for visible alarms apply only to the quantity of spaces being altered or added. 

Recognizing the need to increase the availability of accessible housing stock, the American Association of People with Disabilities (AAPD) the Disability Rights Education Defense Fund (DREDF), National Council for Independent Living (NCIL), Paralyzed Veterans Association (PVA) worked on developing the code proposal that would provide the same level of adaptability as what was required in the 2006 edition of the International Building Code (IBC).

These same disability organizations joined the US Department of Housing and Urban Development in a separate proposal to propose that an effective date be added to an otherwise blanket exception for "Type B" units in existing facilities.   The IBC and its accessibility standard A117.1 refer to the adaptable features required by the federal Fair Housing Amendments Act’s Accessibility Guidelines as a "Type B" unit.

Because these guidelines do not require adaptive features in existing multi-family dwelling units, existing building code’s have used the all encompassing exception below:

Type B dwelling or sleeping units required by Section 1107 of the International Building Code are not required to be provided in existing buildings and facilities

However, there is a significant flaw with such a general exception.

If a covered multi-family dwelling unit (a residential building with 4 or more units) is built on or after March 13, 1991 and for whatever reason does not comply, it would be inaccurate to not indicate the effective date Fair Housing Amendments Act’s Accessibility Guidelines.

The proposal of organization’s representing people with disabilities simply adds the March 13, 1991 effective date to the exception.

"It is important that the code is not contributing to continuing violations of the federal law.  What we can’t understand is how the IBC can be considered a ’safe harbor’ for compliance with Fair Housing with such a glaring deficiency," United Spinal Association’s Dominic Marinelli, said.

By HUD recognizing that a code or standard is a "safe harbor" it means that code or standard is equivalent to the Fair Housing’s Accessibility Guidelines.

"If our proposal is not successful, organization’s representing people with disabilities will have to formally ask HUD to reserve their ’safe harbor’ designation of the 2009 International Building Code.

The first opportunity that the voting membership of the International Codes Council (ICC) will have to vote on these proposals is during ICC’s first meeting of the 2007/2008 code cycle on February 18th through March 2nd at the Palm Springs Convention Center in Palm Springs, California. 

New NYC Construction Codes
Intro 578-A, which is comprised of the new Building Code, Fuel Gas Code, Mechanical Code and Administrative provisions, was signed into law by Mayor Bloomberg on July 3rd, 2007.  Through an effort undertaken by the Department of Buildings and over 400 volunteers from industry, real estate, labor and government, New York City’s 20 year-old accessibility requirements (Local Law 58) will be replaced with the 2003 edition of the International Building Code (IBC).  The new Building Code will reference the 2003 edition of ICC/ANSI A117.1 as its technical guidelines for Accessible and Usable Buildings and Facilities, which is harmonized with the U.S. Access Board’s revised Americans with Disabilities Act/Architectural Barriers Act Accessibility Guidelines (ADA/ABA Accessibility Guidelines). 
The new NYC Construction Codes, including the Plumbing Code in Local Law 99/2005 and the Administrative Provisions, Building, Fuel Gas, and Mechanical Codes in Local Law 33/2007 will become effective on July 1, 2008.  Individuals will have the option at that time to use either the old or new code for one year. On July 1, 2009, the codes will become mandated for new construction. It should be noted that certain provision, including those relating to administration, enforcement, special inspections, and construction safety will apply to all projects as of July 1, 2008.
The new NYC Construction Codes are available online on the NYC Department of Building’s website: http://www.nyc.gov/html/dob/html/model/construction_code.shtml

Updated New York State Codes
The current Building Code of New York State uses combined language from the 2000 edition of the IBC and the 2001 Supplement to the IBC in its Building Code, which references the 1998 edition of ICC/ANSI A117.1 as its technical guidelines for Accessible and Usable Buildings and Facilities.  Rather than using Chapter 34 of the IBC for existing structures, the Building Code of New York State requires existing buildings and facilities to comply with Appendix K.
These construction requirements, for both new and existing facilities, have been updated and will soon be usable.  With the help of the state’s Department of State’s Division of Code Enforcement and Administration and its Technical Subcommittees, New York State has adopted the 2003 edition of the IBC, which references the 2003 edition of the ICC/ANSI A117.1 as its technical guidelines for Accessible and Usable Buildings and Facilities, and the International Existing Building Code (IEBC).
The updated Building Code and Existing Building Code are expected to be published in the October 3, 2007 publication of the Federal Register.  Individuals will have the option on this date to begin using these new codes.  On January 1, 2008, the Building Code and Existing Building Code will become mandated for new construction.  These new codes have been available to purchase from the International Code Council (ICC) since August 20, 2007.  For more information, visit the ICC website: http://www.iccsafe.org/.

Draft copies of the new codes are available online at the following sites:

Building Code: http://www2.iccsafe.org/states/new_york/NY_Building/building_frameset.htm

Existing Building Code: http://www2.iccsafe.org/states/new_york/NY_ExistingBldg/existingbldg_frameset.htm