Issues behind the icon: there are few symbols more recognizable than the white-framed, blue square that features a simple wheelchair icon. It represents areas and services reserved for people with disabilities. A part of everyday life, this image's meaning is hardly questioned. There's no gray area in its implication.

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Apartment owners wish that this same black-and-white clarity, was conveyed by the federal government when addressing accessibility compliance for apartment community construction with first occupancy after March 13, 1991. When attempting to interpret and implement the law as it applies to the angle in a sidewalk's slope, the width of a doorway and the height at which to install light switches, some owners are finding great degrees of inconsistency.

Meanwhile, many now face multi-million-dollar retrofitting costs, seven-figure legal bills and public relations headaches. The rise in the number of companies being sued by civil rights advocacy groups has accelerated in the past year.

Understanding accessibility-related construction and management strategies was the locus of two seminars presented to owners and developers by NAA and National Multi Housing Council in June--one held in Baltimore and another as a session during the 2007 NAA Education Conference & Exposition in Las Vegas.

Anecdotes about community-specific compliance and panelists' descriptions of disputes that owners have had with inspectors and attorneys left attendees both anxious and bewildered.

NAA Education Conference & Exhibition session attendee Gary Ritz, President of Indiana-based Paragus Property Management, which operates 900 apartment homes, said accessibility compliance is both the least understood and the most critical issue the apartment industry faces today.

"It's the biggest challenge we face, and so many of us don't even realize it," Ritz said. "Accessibility represents our industry's biggest point of vulnerability. Our members should be making the effort to learn as much as they can about this."

Advocacy Group Calls Large Firms Into Question

In Las Vegas, panelist D.J. Ryan, a fair housing specialist and education director for Kimball, Tirey and St. John, referred to attorney Ted Pinnock, who is rolling around San Diego in a wheelchair looking for apartment communities and other businesses that are allegedly in violation. He has filed more than 1,000 lawsuites (mostly against businesses) in the past 15 years.

"He looks for community parking lots that do not provide sufficient spaces for the handicapped," Ryan said, "and then he files a lawsuit."

Those suits now number in the hundreds, with advocacy groups such as Washington, D.C.-based Equal Rights Center (ERC) filing an alarming number, according to one defense attorney. ERC is soliciting the work of some of Washington's elite legal firms and is bringing suits against eight of the country's largest national apartment owners since December 2004. Only Bozzuto and Archstone-Smith have settled.

The list also includes high-profile cases brought forth by the U.S. Department of Justice (DOJ). Perhaps the most significant case involved Midwest-based apartment owner and management firm Edward Rose Co. During both June seminars, Edward Rose executives described how its management was part of an exhaustive, expensive and contentious seven-year legal battle as it chose to go head-to-head with the DOJ and ultimately reached an out-of-court settlement.

Among its citations, the DOJ held Edward Rose Co. in violation of slope requirements for sidewalks by eight-tenths of 1 percent. As all example of the level of extremes that the Department took, it measured the pathway slope at Edward Rose Co. communities with a two-foot SmartTool level along paths almost as long as football fields.

Besides such ultra-stringent scrutiny, the other primary contention owners have with the published "technical assistance material" is inconsistency. Dozens of examples exist when interpreting construction guidelines for accessibility in the American National Standards Institute (ANSI) and U.S. Department of Housing and Urban Development's (HUD) Fair Housing Design Manual (FHDM) and Fair Housing Accessibility Guidelines (FHAG). One guideline that stands out is the minimum height requirement for light switches placed on a wall: FHDM states 48 inches and ANSI allows 54 inches.

Criticize as some owners might, attorneys would quickly advise owners that they will lose cases in which owners simply argue that the guidelines are unclear. Edward W. Correia, an attorney with Latham & Watkins, Washington, D.C., whose firm is representing REITs in accessibility cases, offered this advice:

"What the judge wants to hear about are specific steps taken by the owners to provide housing that is compliant and meets the needs of its residents and their guests [with disabilities]." To win these cases, Correia said, "The apartment industry needs to formulize alternatives. It needs to show well-documented empirical evidence as to why certain designs are adequate to allow disabled tenants to live normal lives in their apartment homes."

Clearly a Crisis

In an ERC press release, distributed this year upon the filing of one of its lawsuits against an apartment owner, Rabbi Bruce E. Kahn, Executive Director of the Equal Rights Center, said, "Information ERC has obtained shows that finding accessible housing is the number one crisis facing the over 47 million people with disabilities in the United States.... There is no reason that one of the largest housing providers should be allowed to prevent people with disabilities from finding a place to live by building properties that are inaccessible."

According to the complaint, an ERC investigation discovered numerous accessibility violations, including inaccessible ramp routes, a lack of accessible parking and apartment designs that did not allow a person in a wheelchair to maneuver about kitchens and bathrooms in units.

The Fair Housing Act (FHA) requires all covered multifamily dwellings, built for first occupancy after March 13, 1991, to be designed and constructed in a manner that incorporates certain basic features of both accessibility and adaptable design including usable doors, kitchens and bathrooms, reinforced walls for grab bars and accessible and usable public and common-use areas.

When asked if ERC is seeking compliance from owners with standards that are not clearly written, Don Kahl, an attorney at the Washington Lawyers' Committee for Civil Rights & Urban Affairs that represents ERC, a plaintiff in many of the pending cases, said he disagreed.

"The HUD Guidelines and [FHDM] have been out there for years," Kahl said, "and, in most respects, are very clear and are considered to be more lenient than some of the other accessibility safe harbors, such as the ANSI standards for example.

"The amendments to the FHA were passed in 1988 and people were given until March 1991 to come into compliance. It is amazing to me that so many non-compliant units were built not just after 1991, but even in the last year or two," he said.

Court Rulings Favor Owners

But in a clear victory for the apartment industry on the interpretation of guidelines, on July 25, 2007, Judge Richard J. Leon of the U.S. District Court for the District of Columbia denied ERC's request for a preliminary injunction in the matter of Equal Rights Center v. Post Properties, Inc., No. 06cv1991.

Judge Leon wrote, "The guidelines promulgated pursuant to the FHA do not constitute mandatory requirements upon builders, and, although compliance with the guidelines are sufficient to satisfy FHA's requirements, they are not the 'exclusive means of doing so.'"

ERC had sought a preliminary injunction enjoining Post from selling any of its communities subject to the suit or condo units within such communities unless Post either made the modifications allegedly necessary to bring the apartment homes into compliance with ERC's interpretation of the Fair Housing Act (the Guidelines) prior to sale, or included terms in its contract of sale to allow Post to re-enter the property and retrofit if ordered by the court.

The court found that ERC had not demonstrated that it met any of the four prongs of the preliminary injunction standard.

Attorney Chris Hanback of Washington-based Holland and Knight, who argued the motion for Post, said that developers should be pleased with Leon's ruling. "When developers take the time to present the facts and law to the court, judges do confirm that the Guidelines are not mandatory," Hanback said.

Correia said that because this was only a preliminary ruling, it is hard to assess the significance of the court's statements on the guidelines. "In my view, developers still need to have solid evidence that alternatives to the safe harbors are adequate," Correia said.

The approximately 290-page FHDM, created by HUD in 1996, is considered by many to be the predominant source for compliance. Baltimore panel moderator Michael Skojec, a partner with Baltimore-based legal firm Gallagher, Evelius & Jones, LLP, said, "Owners must understand how advocacy groups are using the FHDM against them."

Owners and their staffs cannot simply read the FHDM, but also must know how to interpret it and the 25-page FHAG, created in 1991 by HUB. Skojec, whose firm is being used to defend against ERC cases, said HUD now requires that FHDM and FHAG be read together.

Also, on Sept. 20, the U.S. Court of Appeals' Ninth Circuit ruled that private civil actions for violations of the Fair Housing Act must be filed within two years of the date the last certificate of occupancy is issued. See Garcia v. Brockway, No. 05-35647.

What Is an Owner to Do?

Hanback, who represented Edward Rose Co. and other apartment owners, said the first and most important piece of advice he gives to apartment firms that are sued is not to overreact.

"Don't rush to settle," Hanback said. "Hire experienced counsel and accessible-design experts. If you do become involved in a suit, it is important to show that your community is accessible." Reiterating what Correia said, Hanback added, "You cannot just go into court and argue that the roles and regulations written by the government are unclear and inconsistent."

Correia offered this advice to owners:

* Document what you did to prove accessibility compliance and why you did it.

* Make a self-determination (through the assistance of attorneys and consultants) of whether your communities are in compliance before you are sued.

* Consult with your disabled residents and ask if they feel the community is designed to meet their needs.

* Be creative during your settlement discussions.

* Protect yourself contractually so that others can share in paying your fines or penalties.

Correia said apartment owners must ask themselves, "How vulnerable am I?" The statute of limitations is two years, but in some cases, Correia said, advocacy groups are looking to identify a pattern of behavior. "They argue that if an owner committed the same violations in 1998 and 2000 as it did in 2006--when the suit was brought--it might have to go back and retrofit all its communities, not just those built within two years of the suit," Correia said.

When asked whether ERC ever attempts to resolve these issues before filing their cases, Kahl said ERC and Kahn, "care deeply about improving the lives of people with disabilities. I am sure ERC would be willing to meet with any [owners] who want to be proactive on accessibility issues to discuss accessibility at their properties. It might be worthwhile for them to begin a dialogue."

Ambiguity as Clear as Day

Mystifying to developers, engineers and architects are contradictions and ambiguities found in the printed guidelines. Reading and comparing the text of the handbooks with the images and the court cases' interpretations of them can be perplexing, to say the least, the panelists said. It is akin to playing a board game with young children who change the rules to make it easier for them to win as the game goes along.

HUD has published several sources of information (and in many cases amended the specifics) about accessibility construction during the past 20 years. Reading the safe harbors therein, abiding by them and even exceeding them when building, renovating and retrofitting communities is a challenge, the panelists said, but definitely is a wise practice, according to attorneys.

"One key is to hire the right attorney, one who is familiar with the inconsistencies of the Guidelines and the FHDM," said Mark Wales, accessibility Consultant, Wales Associates LLC, Duson, La., who was commissioned by the industry to do a study and prepare a timeline of the changes in the government's technical assistance materials. "If you have to explain this all to the attorney, you have not chosen the right one," he said.

Wales, whose analysis is ongoing with a release date scheduled for late this year, said he has identified many statements in the FHAG and the FHDM that can be viewed as conflicting and contradictory, and that an owner probably needs a guide just to understand the guide.

Guidance on Guidance

Wales' research underscores the vague and inconsistent descriptions the government has provided since it first began issuing remarks about accessibility in 1991. Ever since, panelists concurred, owners should not be faulted for asking for definitive, measurable requirements, guidelines and safe harbors when it comes to construction.

HUD states that the FHAG lists neither mandatory nor minimum requirements and provides one of many methods that may be used to comply with the FHA.

As evidence, according to Wales' research, following are actual quotes from HUD, which seem to attempt to frame the requirements:

* "The Department has not categorized the final Guidelines as either performance standards or minimum requirements."

* "Guidelines are not minimums. The minimum requirements are contained in the Fair Housing Act."

* "These guidelines are not mandatory, nor do they prescribe specific requirements that must be met, and which if not met, would constitute unlawful discrimination under the Fair Housing Act."

Stated within the [FHDM], for example, is "as required by the guidelines" and "must comply with the guidelines." FHDM, however, is a non-mandatory interpretation of the non-mandatory guidelines, exacerbating the confusion. "Controversy really exists in many of the details of these documents," Wales said.

Consider that in 1998, a letter from HUD Secretary Mario Cuomo included in the Preface of the FHDM addressed ways for owners to differentiate recommendations of FHDM from requirements.

"But apartment owners who are sued will never hear their accusers say or even hint that these documents are confusing to designers, architects and owners," Wales said. Instead, it is found that advocacy groups seemingly choose which statements to apply to meet their alleged violations accordingly, he said.

Wales said the documents commonly referred to in lawsuits are the FHA, FHAG and the Americans With Disabilities Act (ADA). Rulings prior to Judge Leon's in July have shown that these are the documents with which owners must comply, though these documents, in themselves, state they are only guidelines and are not requirements.

"In some lawsuits, because the claims are so specific, they are then construed by others as minimum requirements, going forward, based on precedence set by court rulings," Wales said. "Owners must try to be bullet-proof. Go with the FHDM, not because it is a requirement, but because it is what is being used against them in court."

Stigma-Specific

Correia said that Congress, when it first imposed accessibility requirements in 1988, failed to recognize how confusing and complicated accessibility standards would be and how costly it would be to retrofit properties after they were built.

In Congress's view, developers needed only adequate notice before the law went into effect.

Correia said that at the time Congress added accessibility requirements to the FHA, it rejected a proposal to apply them to only a percentage of the units at each property.

Congress may have believed that designating specific apartments for residents who have disabilities would create a stigma for those residents.

However, Correia said, Congress should have struck a better balance between protecting the interests of disabled residents and reducing the burden on the rental housing industry. "When the guidelines were published in 1991, the apartment industry had no idea how difficult this situation of compliance would become," he said. "The industry didn't grasp the [extent and costs] of retrofits that courts might require" until recently when it was buried in an avalanche of lawsuits.

NAA/NMHC Comment on HUD Rules About Safe Harbors

On Sept. 17, NAA/NMHC and a coalition of organizations submitted comments on a U.S. Department of Housing and Urban Development (HUD) proposal (72 FR 39540) to amend the rules implementing the Fair Housing Act's design and construction requirements. The stated intent of the proposal was to recognize the updated versions of the ANSI A117.1 standard as a sate harbor for compliance with the accessibility requirements and to codify the 10 safe harbors previously recognized by HUD. NAA/NMHC believe, however, that HUD is using the regulatory process and its enforcement actions to change the law.

NAA/NMHC's objections focused on the following provisions or statements by HUD:

1) failure to follow the HUD Design Guidelines establishes a prima facie case of noncompliance;

2) safe harbor protections are only effective when using the stated safe harbor in its entirety;

3) HUD's attempt to make the use of a stated safe harbor mandatory; and

4) the proposed sunset of earlier ANSI A117.1 versions as safe harbors. The coalition forcefully objected to the expansion of HUD's interpretation of the Fair Housing Act, and NAA/NMHC strongly encouraged HUD to withdraw those sections of the proposal where HUD lacks authority to make such changes.

Accessibility: What's the Issue?

What's Happening: Apartment community owners are facing multi-million-dollar retrofitting costs, seven-figure legal bills and public relations headaches from advocacy groups' lawsuits alleging accessibility non-compliance.

Why It's a Problem: Owners have cited inconsistencies in published guidelines as one of the biggest difficulties in accessibility compliance, and communities are subject to ultra-stringent scrutiny.

What to Do: "'The apartment industry needs to formulize alternatives," Attorney Edward W. Correia said. "It needs to show well-documented empirical evidence as to why certain designs are adequate to allow disabled tenants to live normal lives in their apartment homes."

Why Now?

Why the sudden focus on a 16-year-old law? Peter Cook, a director with residential inspections firm Commercial Assessments, based in Chantilly, Va., said disability, advocates during both the Clinton and George W. Bush administrations began criticizing the inadequate enforcement of the Fair Housing Act (FHA).

In an attempt to increase enforcement, the U.S. Department of Housing and Urban Development (HUD) started the Fair Housing Initiatives Program "Private Enforcement Initiative," through which grants are provided to independent organizations to expand and semi-privatize Fair Housing enforcement. From 2003 to 2006, the funding of these Private Enforcement Initiatives increased from $10 million to nearly $14 million, Cook said.

With HUD investing almost $50 million in private enforcement the past four years, there are now hundreds of local and national organizations that investigate potential FHA violations, Cook said. The impact is being felt as there were a record 10,328 FHA-related complaints reported to HUD and their funded organizations in 2006. "With the new Democrat-controlled Congress voted in last November, those numbers are expected to increase," Cook said.

Attorney Chris Hanback of Washington, D.C.-based Holland and Knight said he does not expect to see a decline in the number of suits being filed. "When you consider that [suits were filed against two more major apartment owners in September], the volume of this litigation is even more alarming than it has been," he said.

--P.B.

Out-of-Court Settlement: The Details

Bozzuto Management Co., based in Greenbelt, Md., which operates approximately 20,000 apartment homes, mostly in the U.S. Mid-Atlantic region, was sued in September 2005 and reached a consent decree on July 26, 2007, based on a lawsuit that was filed against it by Equal Rights Center (ERC).

Following is a summary of settlement details, according to the U.S. District Court for the District of Maryland, for Civil Action No. 8:05-CV-02558-DKC. It included retrofitting 2,000 existing traits at 27 communities.

With the settlement, Bozzuto reduced the number of its communities that required retro-fits, and also agreed to include special, accessibility-friendly design features in other building types (such as condominiums) that were not part of the original list of communities alleged to be in violation.

* For the next four to six years, Bozzuto's final design drawings and plans for each development project are to be peer reviewed and certified in writing as FHA and ADA compliant by licensed design professionals prior to the commencement of construction.

* Bozzuto will pay for the services of consultants approved by ERC who will conduct four surveys of communities in the planning stages and those that require corrective retrofits to bring them into compliance. Upon completion, consultants will meet with ERC and Bozzuto and address any disputes or issues.

* The disputes and issues will then be brought into compliance according to the Fair Housing Design Manual, unless otherwise determined and agreed to by Bozzuto and ERC. As to communities under development, issues related to the centering of clear floor space in bathrooms and kitchens and location of environmental controls, 2003 ANSI standards or later versions shall control, except where otherwise agreed.

* The consultants will select a representative sample of covered units that will be surveyed in each building, floor or stairwell during partial surveys and surveys conducted upon completion of the project. If consultants determine the units are in compliance, then they and those identical units in the building ,nay be occupied prior to final inspection, lint still may be subject to final inspection.

* As to the retrofitting of the common areas of some communities listed in the decree, it must be performed if "readily achievable," as defined by ADA and its regulations.

* Bozzuto agrees that no costs will be passed onto residents in the form of rent, deposit or other lees to pay to bring the communities and units into compliance.

* Bozzuto will list its accessible apartment homes on the National Accessible Apartment Clearinghouse (NAAC) and provide its communities' purchasers with NAAC information.

* Bozzuto will actively engage in advocating compliance with the principles of accessibility to industry organizations such as National Multi Housing Council and other national, state or local builder and development associations. It also will create, with the help of ERC, a presentation on accessibility compliance and present it to at least two major industry groups.

* Within 180 days of this decree, Bozzuto will ensure that all of its employees and agents who are involved in the design and construction of its communities attend fair-housing training, including compliance with FHA and ADA requirements.

--P.B.

Paul R. Bergeron III is NAA's Director of Communications. He can be reached at 703/797-0606 or [e-mail].