ADA Title II NPRM – residential dwelling units for sale to individual owners

The Department of Justice (DOJ) is asking about what standards should apply to newly constructed residential dwelling units built by or on behalf of a state or local government where the dwelling units are intended to be sold to individual owners.

Comments :

The Department should require that the scoping for newly constructed housing, including dwelling units covered by the Fair Housing Act, that are built by or on behalf of public entities and intended for sale to individual owners should be subject to, at a minimum, the requirements of ADAAG 233.3.1, 233.3.1.1 and 233.3.1.2. Those provisions require in new residential construction that at least five percent (5%), but no fewer than one of the dwelling units in residential facilities provide mobility features, and at least two percent (2%) but now fewer than one of the dwelling units provide communication features.

At present, there is ambiguity on the scope of coverage of HUD’s existing Section 504 regulations on units constructed for homeownership. The HUD homeownership regulation, 24 C.F.R. §8.29 is entitled “Homeownership programs (sections 235(i) and 235 (j), Turnkey III and Indian housing mutual self-help programs).” The HUD Section 235(i) & 235(j) and Turnkey III programs have not been funded in many years.

The existing regulation, 24 C.F.R §8.29, also presumes that a prospective buyer will have been identified before construction or rehabilitation has begun so that specific design features that will meet the needs of the prospective buyer with disabilities will be incorporated in the construction. However, HUD and state funded homeownership programs rarely if ever identify prospective buyers before construction has commenced. Most homeownership programs match prospective buyers with completed or nearly completed dwellings.

The existing HUD Section 504 regulations for new multi-family housing projects, 24 C.F.R. §8.22, requires a minimum of five percent of the total dwelling units or at least one unit in a multifamily housing project to be accessible for persons with mobility impairments (UFAS compliant) and an additional two percent of the units (but not less than one unit) to be accessible for persons with hearing or vision impairments. However, at least one court has interpreted the multi-family housing regulation to cover only rental and not homeownership units. Telesca v. Long Island Housing Partnership, 443 F. Supp.2d 397 (E.D. N.Y. 2006).

Given the questionable applicability of 24 C.F.R §8.29 to current HUD homeownership projects such as HUD’s HOME program, the unrealistic assumption that a prospective owner will be identified before design and construction commences, the limiting interpretation applied to multi-family housing regulation by the Telesca court, the need to provide guidance to state and locally funded homeownership programs and HUD’s failure to consider and adopt any form of the 2004 ADAAG standards, it is inappropriate for the Department to continue to defer to HUD.

Instead, the Department should require state and local government funded home ownership units built for sale to individual to comply with, at a minimum, ADAAG 233.3.1, 233.3.1.1 and 233.3.1.2. This standard should apply to situations where at least the housing is a project consisting of five or more units, whether or not those units are located on one location or multiple locations, consistent with HUD’s current definition of project.

For residential home ownership units constructed with federal financial assistance

HUD is free to impose additional scoping requirements beyond the ADAAG 233.3.1, 233.3.1.1 and 233.3.1.2 in the future.

As an additional reason for the Department not to defer to HUD, it should be noted that the General Services Administration and the United States Post Office have adopted the Architectural Barriers Act (ABA) requirements. However, the Department of Housing and Urban Development has yet to adopt the ABA standards. Thus, any new federally funded residential housing remains subject to the Uniform Federal Accessibility Standards rather than the ABA. Developers and builders therefore must continue to comply with multiple accessibility standards depending on the type (residential dwelling units vs. non residential and homeownership v. rental), size (less than five, five to fifteen or sixteen or more) and funding of new construction.