Built-in mistakes: could your company be the subject of the next housing discrimination case filed as a result of accessibility violations created during construction?

There is a storm sweeping the nation and apartment developments are at risk. Although it is not a hurricane or a tornado, efforts to repair the damage can be just as costly. The storm is caused by several recent cases have been filed against large-scale housing developers for widespread and nationwide noncompliance. The price for fixing violations in a completed development has cost owners millions.

The U.S. Department of Housing and Urban Development (HUD), the U.S. Department of Justice (DOJ) and other groups have increased enforcement of federal accessibility laws. In fact, in the fall of 2006, HUD awarded more than $18 million for fair housing enforcement and education in an effort to help reduce housing discrimination. And in some cases, non-accessible apartment buildings can constitute discrimination.

Many apartment design professionals assume that plan approvals by building departments are a guarantee of compliance. What they do not realize is that building departments assess building code compliance, not compliance with federal laws. Industry professionals must put accessibility on the radar screen by understanding the laws and codes that may apply to their projects.

Fair housing violations are usually the result of the misunderstanding or misapplication of technical guidelines developed to ensure access for people with disabilities. Design professionals can avoid many of the typical fair housing mistakes by ensuring compliance in the design development stage. Once construction is complete, violations can he extremely costly to remediate.

Steep Slopes, Steep Fines

Accessible dwelling units are required to be connected to the common areas that serve them by an "accessible route," which is subject to specific criteria to make the route easy to negotiate for most people. Two of the criteria that developers often violate are maximum allowable running and cross slopes. The running slope is a measure of the slope parallel to the direction of circulation; the cross slope is measured perpendicular to the direction of circulation.

Cross slopes of accessible routes are required to be no more than 2 percent, which is flat to the unassuming eye. It is not uncommon during a site inspection to find cross slopes in excess of 10 percent, a path many cannot easily use.

Typically, extreme cross slopes occur at the intersection of a sidewalk and a curb ramp where the route along the sidewalk continues across the slope of the curb ramp. In this case, the running slope of the curb ramp, which is permitted to be up to 8.33 percent, is also the cross slope of the accessible route across curb ramp; cross slopes are not permitted to exceed 2 percent.

Providing a pathway around the top of the curb ramp so that a person is not required to negotiate across the slope of the curb ramp is one way to eliminate this common violation.

Additionally, cross slopes of accessible routes typically exceed 2 percent where those routes are provided across driveway aprons, which often slope steeply: If an accessible route is designed to cross a driveway, a minimum 36-inch wide route with a maximum cross slope of 2 percent must be maintained. (Code may require these routes to be wider than 36 inches.) One way to remedy this inaccessible condition after the project is complete is to create a built-up route across the sloping driveway with a maximum 2 percent cross slope. Concrete driveways may require a more expensive replacement and relocation of the flared driveway entrance.

It is not uncommon to find accessible routes with running slopes more than double the maximum permitted. Remediation of excessive running slopes can be extremely expensive, including provisions for additional accessible "bypass" routes or removing and replacing steep routes where a bypass route is not possible.

Depending on the site conditions, it may not always be possible to achieve compliant running slopes. For example, extremely hilly terrain may prevent developers from installing a route with a compliant running slope, but where a compliant route is achievable, it must be provided. For example, a site may have a hilly area and an area that is relatively flat. Including dwelling units in the area of the site that is hilly to avoid the inclusion of accessible routes may be considered deliberate manipulation to avoid compliance.

Curb Ramp Compliance

Noncompliant curb ramps are by far one of the most prevalent violations. Curb ramps are an integral part of accessible routes and provide access from street level, in most cases, to the sidewalk.

It is easy to violate curb ramp requirements because there are many components to address, including how a curb ramp meets the adjacent sidewalk, curb and street For example, the bottom of a curb ramp often meets a gutter; the flares of a flared-type curb ramp meet a curb; and the top of the curb ramp meets the route that continues through the site. Each of those components has an effect on curb ramp construction.

For example, gutters, or the area where the bottom of a curb ramp meets the street, are often sloped toward the curb ramp. Clearly, an excessive counter slope of the gutter makes it difficult for a person in a wheelchair to maintain the momentum needed to move across the slope of the gutter and onto the running slope of the curb ramp. For the most part, remediation often requires removal and replacement of the curb ramp.

The Hazards of Protruding Objects

Technical standards that provide guidance for accessible design not only address the needs of people with physical disabilities, but they also include criteria that minimize conditions that might be hazardous to people with visual disabilities Objects that protrude from walls or those that reduce headroom clearance, for example, can be hazardous for people with visual disabilities.

Wall-mounted objects, such as lighting, which are installed lower than 80 inches and more than 27 inches above the finished floor must not project more than 4 inches into the circulation path. Commonly, designers focus on eliminating unsafe protruding objects from accessible routes, but criteria developed to address the needs of people with visual disabilities apply to "circulation paths" and are not limited to the accessible route Typical fixes include replacing features with similar low-profile models, such as low-profile lighting, or where remounting or replacing the feature is not feasible, providing a permanent cane-detectable barrier below will suffice, in most cases.

The lack of a cane-detectable barrier below an open stair run is a common violation of headroom criteria. Open stair runs, which are not permitted in many jurisdictions because of the potentially unsafe conditions they pose, must include a cane-detectable barrier to prevent people with visual disabilities from walking below.

Although solutions for eliminating dangerous protruding objects are not complicated, the amount of remediation typically needed to address these potential hazards can be costly. For example, a newly constructed apartment community with many buildings and hundreds of units scattered throughout a site may include exterior wall sconces at each exterior ground level unit entry. A quick measurement of one of the entry door lights may reveal that they must be replaced with low-profile models. The solution is simple, but replacing hundreds of lights in one development can be expensive.

Violations on the Inside

Depending on which law applies, the technical criteria used for guidance on designing accessible dwelling unit interiors varies. Without knowing which law and standard applies, designing to the wrong referenced standard may result in non-compliance. However, each standard provides requirements for creating accessible interior spaces.

* Switches, Electrical Outlets and Thermostats. For features located above obstructions, such as countertops, mounting height requirements change because of the added difficulty of reaching features installed above obstructions. Electrical subcontractors typically install light switches at the same height regardless of where the switches are located, which often results in noncompliance. Remediation almost always involves lowering accessible switches, outlets and thermostats that are out of range.

* Clear Width For Doors. It is not uncommon to find doors that do not provide proper clear width, especially when two doors allow access the same room, such as a bathroom--one swing door might provide the proper clear width, but a second pocket door, which provides access from the bedroom, might provide a clear width that is too narrow. Any door that is meant to be walked through must be wide enough, regardless of where the door is located and how many doors are provided to the same space. Remediation, in most cases, involves removing and replacing the door and associated buck.

* Clearance at the Lavatory. For units covered by the FHAA only, a centered 30-inch-by-48-inch clear floor space is required for a parallel approach to the lavatory; for units covered by Section 504, the 30-inch-by-48-inch clear floor space is required for a front approach only, in which case knee space must be provided (base cabinets are permitted to be in place as long as they are readily removable). Typically, space in bathrooms does not allow proper positioning of the clear floor space at the lavatory, and remediating this condition is not always simple. It may involve shifting the lavatory to the left or right or eliminating the base cabinet to allow for a front approach rather than an improperly positioned side approach.

* Narrow Kitchens. For galley-style kitchens, developers must maintain 40 inches between opposing elements. In tight galley kitchens, appliances that stick out too far commonly reduce the distance between the face of the appliance and the opposing element to less than 40 inches. Although kitchen plans may show that 40 inches are provided, appliances selected later in the process or appliances that are substituted may compromise clearance requirements.

DISCLAIMER

This article does not provide a comprehensive list of all accessibility compliance requirements for apartment owners.

Peter Stratton is a Senior Associate with Steven Winter Associates Inc. (SWA). He can be reached at 203/857-0200 Ext. 217 or [e-mail].

Mark Jackson is an Accessibility Specialist with SWA. He can be reached at 203/857-0200 Ext. 237 or mjackson@swinter com. SWA is an architecture/engineering building systems consulting firm with expertise in federal accessibility law as it applies to design and construction.