The apartment industry won a significant victory in November 2011 when a judge rejected a claim that the only way to comply with federal accessibility regulations in designing and constructing properties is to follow standards approved by the federal government.
At issue was a Justice Department (DOJ) lawsuit filed against JPI Apartment Construction alleging a pattern and practice of failing to comply with the accessibility requirements of the Fair Housing Act and the Americans with Disabilities Act.
The judge rejected DOJ’s request for summary judgment after the defense team led by Holland & Knight demonstrated that there are other ways to meet accessibility requirements and that failure to meet the standards favored by the U.S. does not constitute unlawful discrimination. The court concluded that the defendants had presented ample facts supporting a finding that the properties’ were generally accessible and usable by persons with disabilities. The matter is now positioned to proceed to trial.
NMHC/NAA and others in the apartment industry have long argued for the need for tolerances in determining compliance with accessibility requirements. Of note, an expert for the defense team cited NMHC/NAA’s 2010 study on accessibility as part of his expert opinion. This study, Accessibility Standards for Multifamily Housing: Report on Approaches with Focus on Slope, Reach, Tolerance and Measurement, identifies the most critical design elements for developers and challenges the current standards as the only means of achieving compliance in these areas.