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Fair Housing Accessibility Guidelines cont'd

Conflict with Historic Preservation Design Codes

Comment. Two commenters expressed concern about a possible conflict between the Act's accessibility requirements and local historic preservation codes (including compatible design requirements). The commenters stated that their particular concerns are:

  1. the conversion of warehouse and commercial space to dwelling units; and
  2. new housing construction on vacant lots in historically designated neighborhoods.
Response. Existing facilities that are converted to dwelling units are not subject to the Act's accessibility requirements. Additionally, alteration, rehabilitation or repair of covered multifamily dwellings are not subject to the Act's accessibility requirements. The Act's accessibility requirements only apply to new construction. With respect to new construction in neighborhoods subject to historic codes, the Department believes that the Act's accessibility requirements should not conflict with, or preclude building designs compatible with historic preservation codes.

Conflict with Local Accessibility Codes.

Comment. Several commenters inquired about the appropriate course of action to follow when confronted with a conflict between the Act's accessibility requirements and local accessibility requirements.
Response. Section 100.205(i) of the Fair Housing regulations implements Section 804(f)(8) of the Act, which provides that the Act's accessibility requirements do not supplant or replace State or local laws that impose higher accessibility standards (53 FR 45005). For accessibility standards, as for other code requirements, the governing principle to follow when Federal and State (or local) codes differ is that the more stringent requirement applies.
This principle is equally applicable when multifamily dwellings are subject to more than one Federal law requiring accessibility for persons with physical disabilities. For example, a multifamily dwelling may be subject both to the Fair Housing Amendments Act and to Section 504 of the Rehabilitation Act of 1973. Section 504 requires that 5% of units in a covered multifamily dwelling be fully accessible -- thus imposing a stricter accessibility standard for those units than would be imposed by the Fair Housing Act. However, compliance only with the Section 504 requirements would not satisfy the requirements of the Fair Housing Act. The remaining units in he covered multifamily dwelling would be required to meet the specific accessibility requirements of the Fair Housing Act.

Comment. One commenter, the Seattle Department of Construction and Land Use, presented an example of how a local accessibility code that is more stringent with respect to some accessibility provisions may interact with the Act's accessibility requirements, where they are more stringent with respect to other provisions. The commenter pointed out that the State of Washington is very hilly, and that the State of Washington's accessibility code requires accessible buildings on sites that would be deemed impractical under the Option One guidelines. The commenter stated that the State of Washington's accessibility code may require installation of a ramp, and that the ramp may then create an accessible entrance for the ground floor, making it subject to the Act's accessibility requirements. The commenter asked that, since the project was not initially subject to the Act's requirements, whether the creation of an accessible ground floor in accordance with the State code provisions would require all units on the ground floor to be made accessible in accordance with the Fair Housing Act. (The State of Washington's accessibility code would require only a percentage of the units to be accessible.)
Response. The answer to the commenter's question is that a nonelevator building with an accessible entrance on an accessible route is required to have the ground floor units designed and constructed in compliance with the Act's accessibility requirements. This response is consistent with the principle that the stricter accessibility requirement applies.

Design Guidelines for Environmental Illness

Comment. Twenty-three (23) commenters advised the Department that many individuals are disabled because of severe allergic reactions to certain chemicals used in construction, and in construction materials. These commenters requested that the Department develop guidelines for constructing or renovating housing that are sensitive to the problems of individuals who suffer from these allergic reactions (commonly referred to as environmental illnesses). These commenters further advised that, as of February 1988, the Social Security Administration lists as a disability "Environmental Illness" (P.O.M.S. Manual No. 24515.065).
Response. The Guidelines developed by the Department are limited to providing guidance relating to the specific accessibility requirements of the Fair Housing Act. As discussed above, under the preamble heading "Bias Toward Wheelchair Users," the Act's requirements primarily are directed to providing housing that is accessible to individuals with mobility impairments. There is no statutory authority for the Department to create the type of design and construction standards suggested by the commenters.

Design Guidelines for the Hearing and Visually-Impaired

Comment. Several commenters stated that the proposed guidelines failed to provide design features for people with hearing and visual impairments. These commenters stated that visual and auditory design features must be included in the final Guidelines.
Response. As noted in the response to the preceding comment, the Department is limited to providing Guidelines for the specific accessibility requirements of the Act. The Act does not require fully accessible individual dwelling units. For individual dwelling units, the Act requires the following: doors sufficiently wide to allow passage by handicapped persons in wheelchairs; accessible route into and through the dwelling unit; light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; reinforcements in bathroom walls to allow later installation of grab bars; and usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. To specify visual and auditory design features for individual dwelling units would be to recommend standards beyond those necessary for compliance with the Act. Such features were among those identified in Congressional statements discussing modifications that would be made by occupants.
The Act, however, requires public and common use portions of covered multifamily dwellings to be "readily accessible to and usable by handicapped persons." The more comprehensive accessibility requirement for public and common use areas of dwellings necessitates a more comprehensive accessibility standard for these areas. Accordingly, for public and common use areas, the final Guidelines recommend compliance with the appropriate provisions of the ANSI Standard. The ANSI Standard for public and common use areas specifies certain design features to accommodate people with hearing and visual impairments.

Guidelines as Minimum Requirements

Comment. A number of commenters requested that the Department categorize the final Guidelines as minimum requirements, and not as performance standards, because "recommended" guidelines are less effective in achieving the objectives of the Act. Another commenter noted that a safe harbor provision becomes a de facto minimum requirement, and that it should therefore be referred to as a minimum requirement.
Response. The Department has not categorized the final Guidelines as either performance standards or minimum requirements. The minimum accessibility requirements are contained in the Act. The Guidelines adopted by the Department provide one way in which a builder or developer may achieve compliance with the Act's accessibility requirements. There are other ways to achieve compliance with the Act's accessibility requirements, as for example, full compliance with ANSI A117.1. Given this fact, it would be inappropriate on the part of the Department to constrain designers by presenting the Fair Housing Accessibility Guidelines as minimum requirements. Builders and developers should be free to use any reasonable design that obtains a result consistent with the Act's requirements. Accordingly, the design specifications presented in the final Guidelines are appropriately referred to as "recommended guidelines".
It is true, however, that compliance with the Fair Housing Accessibility Guidelines will provide builders with a safe harbor. Evidence of compliance with the Fair Housing Accessibility Guidelines adopted by this notice shall be a basis for a determination that there is no reasonable cause to believe that a discriminatory housing practice under Section 804(f)(3) has occurred or is about to occur in connection with the investigation of complaints filed with the Department relating to covered multifamily dwellings.

National Accessibility Code

Comment. Several commenters stated that there are too many accessibility codes -- ANSI, UFAS, and State and local accessibility codes. These commenters requested that the Department work with the individual States to arrive at one national uniform set of accessibility guidelines.
Response. There is no statutory authority to establish one nationally uniform set of accessibility standards. The Department is in agreement with the commenters' basic theme that increased uniformity in accessibility standards is desirable. In furtherance of this objective, the Department has relied upon the ANSI Standard as the design basis for the Fair Housing Accessibility Guidelines. The Department notes that the ANSI Standard also serves as the design basis for the Uniform Federal Accessibility Standards (UFAS), the Minimum Guidelines and Requirements for Accessible Design (MGRAD) issued by the U.S. Architectural and Transportation Barriers Compliance Board, and many State and local government accessibility codes.

One Set of Design Standards

Comment. A number of commenters objected to the fact that the proposed guidelines included more than one set of design standards. The commenters stated that the final Guidelines should present only one set of design standards so as not to weaken the Act's accessibility requirements.
Response. The inclusion of options for accessibility design in the proposed guidelines was both to encourage a maximum range of public comment, and to illustrate that there may be several ways to achieve compliance with the Act's accessibility requirements. Congress made clear that compliance with the Act's accessibility standards did not require adherence to a single set of design specifications. In Section 804(f)(4) of the Act, the Congress stated that compliance with the appropriate requirements of the ANSI Standard suffices to satisfy the accessibility requirements of the Act. In House Report No. 711, the Congress further stated as follows:

 

    "However this section [Section 804(f)(4)] is not intended to require that designers follow this standard exclusively, for there may be other local or State standards with which compliance is required or there may be other creative methods of meeting these standards." (House Report at 27)

    Similarly, the Department's Guidelines are not the exclusive standard for compliance with the Act's accessibility requirements. Since the Department's Guidelines are a safe harbor, and not minimum requirements, builders and developers may follow alternative standards that achieve compliance with the Act's accessibility requirements. This policy is consistent with the intent of Congress, which was to encourage creativity and flexibility in meeting the requirements of the Act.

    Reliance on Preamble to Guidelines

    Comment. One commenter asked whether the explanatory information in the background section of the final Guidelines may be relied upon, and deemed to have the same force and effect as the Guidelines themselves.
    Response. The Fair Housing Accessibility Guidelines are -- as the name indicates -- only guidelines, not regulations or minimum requirements. The Guidelines consist of recommended design specifications for compliance with the specific accessibility requirements of the Fair Housing Act. The final Guidelines provide builders with a safe harbor that, short of specifying all of the provisions of the ANSI Standard, illustrate acceptable methods of compliance with the Act. To the extent that the preamble to the Guidelines provides clarification on certain provisions of the Guidelines, or illustrates additional acceptable methods of compliance with the Act's requirements, the preamble may be relied upon as additional guidance. As noted in the "Summary" portion of this document, the preamble to the Guidelines will be codified in the 1991 edition of the Code of Federal Regulations as Appendix III to the Fair Housing regulations (24 CFR Ch. I, Subch. A, App. III.).

    "User Friendly" Guidelines

    Comment. A number of commenters criticized the proposed guidelines for being too complicated, too ambiguous, and for requiring reference to a number of different sources. These commenters requested that the final Guidelines be clear, concise and "user friendly". One commenter requested that the final Guidelines use terms that conform to terms used by each of the three major building code organizations: the Building Officials and Code Administrators International, Inc. (BOCA); the International Conference of Building Officials (ICBO), and the Southern Building Code Congress International (SBCCI).
    Response. The Department recognizes that the Accessibility Guidelines include several highly technical provisions. In drafting the final Guidelines, the Department has made every effort to explain these provisions as clearly as possible, to use technical and building terms consistent with the terms used by the major building code organizations, to define terms clearly, and to provide additional explanatory information on certain of the provisions of the Guidelines.

    1. Section-by-Section Analysis of Final Guidelines

      The following presents a section-by-section analysis of the final Guidelines. The text of the final Guidelines is organized into five sections. The first four sections of the Guidelines provide background and explanatory information on the Guidelines. Section 1, the Introduction, describes the purpose, scope and organization of the Guidelines. Section 2 defines relevant terms used. Section 3 reprints the text of 24 CFR 100.205, which implements the Fair Housing Act's accessibility requirements, and Section 4 describes the application of the Guidelines. Section 5, the final section, presents the design specifications recommended by the Department for meeting the Act's accessibility requirements, as codified in 24 CFR 100.205. Section 5 is subdivided into seven areas, to address each of the seven areas of accessible design required by the Act.
      The following section-by-section analysis discusses the comments received on each of the sections of the proposed Option One Guidelines, and the Department's response to these comments. Where no discussion of comments is provided under a section heading, no comments were received on this section.

       

        Section 1. Introduction

        Section 1, the Introduction, describes the purpose, scope and organization of the Fair Housing Accessibility Guidelines. This section also clarifies that the accessibility guidelines apply only to the design and construction requirements of 24 CFR 100.205, and do not relieve persons participating in a federal or federally-assisted program or activity from other requirements, such as those required by section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157). (The design provisions for those laws are found at 24 CFR Part 8 and 24 CFR Part 40, respectively.) Additionally, Section 1 explains that only those sections of the ANSI Standard cited in the Guidelines are required for compliance with the accessibility requirements of the Fair Housing Act. Revisions to Section 1 reflect the Department's response to the request of several commenters for further clarification on the purpose and scope of the Guidelines.

        Section 2. Definitions

        This section incorporates appropriate definitions from �100.201 of the Department's Fair Housing regulations, and provides additional definitions for terms used in the Guidelines. A number of comments were received on the definitions. Clarifications were made to certain definitions, and additional terms were defined. New terms defined in the final Guidelines include: "adaptable," "assistive device," "ground floor," "loft," "multistory dwelling unit," "single-story dwelling unit," and "story". The inclusion of new definitions reflects the comments received, and also reflects new terms introduced by changes to certain of the Option One design specifications. In several instances, the clarifications of existing definitions, or the new terms defined, were derived from definitions of certain terms used by one or more of the major building code organizations. Comments on specific definitions are discussed either below or in that portion of the preamble under the particular section heading of the Guidelines in which these terms appear.

        Accessible

        Comment. A number of commenters stated that the Department used the terms "accessible" and "adaptable" interchangeably, and requested clarification of the meaning of each. The commenters noted that, under several State building codes, these terms denote different standards for compliance. The commenters requested that if the Department intends these two terms to have the same meaning, this should be clearly stated in the final Guidelines, and, if the terms have different meanings, "adaptable" should also be defined.
        Response. The Department's use of the terms "adaptable" and "accessible" in the preamble to the proposed guidelines generally reflected Congress' use of the terms in the text of the Act, and in the House and Senate conference reports. However, to respond to commenters' concerns about the distinctions between these terms, the Department has included a definition of "adaptable dwelling units" to clarify the meaning of this term, within the context of the Fair Housing Act. In the final Guidelines, "adaptable dwelling units", when used with respect to covered multifamily dwellings, means dwelling units that include features of adaptable design specified in 24 CFR 100.205(c)(2)-(3).
        The Fair Housing Act refers to design features that include both the minimal "accessibility" features required to be built into the unit, and the "adaptable" feature of reinforcement for bathroom walls for the future installation of grab bars. Accordingly, under the Fair Housing Act, an "adaptable dwelling unit" is one that meets the minimal accessibility requirements specified in the Act (i.e., usable doors, an accessible route, accessible environmental controls, and usable kitchens and bathrooms) and the "adaptable" structural feature of reinforced bathroom walls for later installation of grab bars.

        Assistive Device

        Comment. Several commenters requested that we define the phrase "assistive device."
        Response. "Assistive device" means an aid, tool, or instrument used by a person with disabilities to assist in activities of daily living. Examples of assistive devices include tongs, knob turners, and oven rack pusher/pullers. A definition for "assistive device" has been included in the final Guidelines.

        Bathroom

        In response to the concern of several commenters, the Department has revised the definition of "bathroom" in the final Guidelines to clarify that a bathroom includes a "compartmented" bathroom. A compartmented bathroom is one in which the bathroom fixtures are distributed among interconnected rooms. The fact that bathroom facilities may be located in interconnecting rooms does not exempt this type of bathroom from the Act's accessibility requirements. This clarification, and minor editorial changes, were the only revisions made to the definition of "bathroom". Other comments on this term were as follows:

        Comment. Several commenters requested that the Department reconsider its definition of "bathroom", to include powder rooms, i.e., rooms with only a toilet and sink. These commenters stated that persons with disabilities should have access to all bathrooms in their homes, not only full bathrooms. One commenter believed that, unless bathroom was redefined to include single- or two-fixture facilities, some developers will remove a bathtub or shower from a proposed second full bathroom to avoid having to make the second bathroom accessible. The commenter suggested that bathroom be redefined to include any room containing at least two of the possible bathroom fixtures (toilet, sink, bathtub or shower).
        Response. In defining "bathroom" to include a water closet (toilet), lavatory (sink), and bathtub or shower, the Department has followed standard dictionary usage, as well as Congressional intent. Congressional statements emphasized that the Act's accessibility requirements were expected to have a minimal effect on the size and design of dwelling units. In a full-size bathroom, this can be achieved. To specify space for wheelchair maneuvering in a powder room would, in most cases, require enlarging the room significantly. However, a powder room would be subject to the Act's accessibility requirements if the powder room is the only toilet facility on the accessible level of a covered multistory dwelling unit. Additionally, it should be noted that doors to powder rooms (regardless of the location of the powder room), like all doors within dwelling units, are required by the Act to be wide enough for wheelchair passage. Some powder rooms may, in fact, be usable by persons in wheelchairs.

        Comment. One commenter requested that the final Guidelines provide that a three-quarters bathroom (water closet, lavatory and shower) would not be subject to the accessibility requirements -- specifically, the requirement for grab bar reinforcement.
        Response. The Fair Housing Act requires reinforcements in bathroom walls to allow for later installation of grab bars at toilet, bathtub or shower, if provided. Accordingly, the Fair Housing regulations specifically require reinforcement in bathroom walls to allow later installation of grab bars around the shower, where showers are provided. (See 24 CFR 100.205(c)(3)(iii).)

        Building

        Comment. One commenter suggested that the Department use the term "structure" in lieu of "building". The commenter stated that, in the building industry, "building" is defined by exterior walls and fire walls, and that an apartment structure of four units could be subdivided into two separate buildings of two units each by inexpensive construction of a firewall. The commenter suggested that the final definition of "building" include the following language: "For the purpose of the Act, firewall separation does not define buildings."
        Response. The term "building" is the term used in the Fair Housing Act. The Department uses this term in the Guidelines to be consistent with the Act. With respect to the comment on firewall separation, the Department believes that, within the context of the Fair Housing Act, the more appropriate place for the language on firewall separation is in the definition of "covered multifamily dwellings". Since many building codes in fact define "building" by exterior walls and firewalls, a definition of "building" in the Fair Housing Accessibility Guidelines that explicitly excludes firewalls as a means of identifying a building would place the Guidelines in conflict with local building codes. Accordingly, to avoid this conflict, the Department has clarified the definition of "covered multifamily dwelling" (which is discussed below) to address the issue of firewall separation.

        Covered Multifamily Dwellings

        The Department has revised the definition of "covered multifamily dwellings" to clarify that dwelling units within a single structure separated by firewalls do not, for purposes of these Guidelines, constitute separate buildings.
        A number of questions and comments were received on what should, or should not, be considered a covered multifamily dwelling. Several of these comments requested clarification concerning "ground floor dwelling units". These comments generally concluded with a request that the Department define "ground floor" and "ground floor unit". The Department has included a definition of "ground floor" in the final Guidelines. The Department believes that this definition is sufficiently clear to identify ground floor units, and that therefore a separate definition for "ground floor unit" is unnecessary. Specific questions concerning ground floor units are discussed below under the heading "Ground Floor". Comments on other covered multifamily dwellings are as follows:

        Comment. (Garden apartments) One commenter requested that the Department clarify whether single family attached dwelling units with all living space on one level (i.e. garden units) fall within the definition of covered multifamily dwellings.
        Response. The Fair Housing Act and its regulations clearly define "covered multifamily dwellings" as buildings consisting of four or more dwelling units, if such buildings have one or more elevators, and ground floor dwelling units in other buildings consisting of four or more dwelling units. Garden apartments located in an elevator building of four or more units are subject to the Act's requirements. If the garden apartment is on the ground floor of a nonelevator building consisting of four or more apartments, and if all living space is on one level, then the apartment is subject to the Act's requirements (unless the building is exempt on the basis of site impracticality).

        Comment. (Townhouses) Several commenters requested clarification concerning whether townhouses are covered multifamily dwellings.
        Response. In the preamble to the Fair Housing regulations, the Department addressed this issue. Using an example of a single structure consisting of five two-story townhouses, the Department stated that such a structure is not a covered multifamily dwelling if the building does not have an elevator, because the entire dwelling unit is not on the ground floor. Thus, the first floor of a two-story townhouse in the example is not a ground floor unit, because the entire unit is not on the ground floor. In contrast, a structure consisting of five single-story townhouses would be a covered multifamily dwelling. (See 54 FR 3244; 24 CFR Ch. I, Subch. A, App. I at 575-576 (1990).)

        Comment. (Units with basements) One commenter asked whether a unit that contains a basement, which provides additional living space, would be viewed as a townhouse, and therefore exempt from the Act's accessibility requirements. The commenter stated that basements are generally designed with the top of the basement, including the basement entrance, above finished grade, and that basement space cannot be made accessible without installation of an elevator or a lengthy ramp.
        Response. If the basement is part of the finished living space of a dwelling unit, then the dwelling unit will be treated as a multistory unit, and application of the Act's accessibility requirements will be determined as provided in the Guidelines for Requirement 4. If the basement space is unfinished, then it would not be considered part of the living space of the unit, and the basement would not be subject to the Act's requirements. Attic space would be treated in the same manner.

        Dwelling Unit

        "Dwelling unit" is defined as a single unit of residence for a household of one or more persons. The definition provides a list of examples of dwelling units in order to clarify the types of units that may be covered by the Fair Housing Act. The examples include condominiums and apartment units in apartment buildings. Several commenters submitted questions on condominiums, and one commenter requested clarification on whether vacation time-sharing units are subject to the Act's requirements. Their specific comments are as follows:

        Comment. (Condominiums) A few commenters requested that condominiums be excluded from covered dwelling units because condominiums are comparable to single family homes. The commenter stated that condominiums do not compete in the rental market, but compete in the sale market with single family homes, which are exempt from the Act's requirements.
        Response. The Fair Housing Act requires all covered multifamily dwellings for first occupancy after March 13, 1991 to be designed and constructed in accordance with the Act's accessibility requirements. The Act does not distinguish between dwelling units in covered multifamily dwellings that are for sale, and dwelling units that are for rent. Condominium units in covered multifamily dwellings must comply with the Act's accessibility requirements.

        Comment. (Custom-designed condominium units) Two commenters stated that purchasers of condominium units often request their units to be custom designed. The commenters questioned whether custom-designed units must comply with the Act's accessibility requirements. Another commenter stated that the Department should exempt from compliance those condominium units which are pre-sold, but not yet constructed, and for which owners have expressly requested designs that are incompatible with the Act's accessibility
        requirements.
        Response. The fact that a condominium unit is sold before the completion of construction does not exempt a developer from compliance with the Act's accessibility requirements. The Act imposes affirmative duties on builders and developers to design and construct covered multifamily dwellings for first occupancy after March 13, 1991 in accordance with the Act's accessibility requirements. These requirements are mandatory for covered multifamily dwellings for first occupancy after March 13, 1991, regardless of the ownership status of covered individual dwelling units. Thus, to the extent that the pre-sale or post-sale construction included features that are covered by the Act (such as framing for doors in pre-sale "shell" construction), they should be built accordingly.

        Comment. (Vacation timeshare units) One commenter questioned whether vacation timeshare units were subject to the Act's requirements. The commenter stated that a timeshare unit may be owned by 2 to 51 individuals, each of whom owns, or has the right to use, the unit for a proportionate period of time equal to his or her ownership.
        Response. Vacation timeshare units are subject to the Act's accessibility requirements, when the units are otherwise subject to the accessibility requirements. "Dwelling" is defined in 24 CFR 100.20 as "any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof". The preamble to the final Fair Housing rule states that the definition of "dwelling" is "broad enough to cover each of the types of dwellings enumerated in the proposed rule: mobile home parks, trailer courts, condominiums, cooperatives, and time-sharing properties." (Emphasis added.) (See 54 FR 3238, 24 CFR Ch. I, Subch. A, App. I, at 567 (1990).) Accordingly, the fact of vacation timeshare ownership of units in a building does not affect whether the structure is subject to the Act's accessibility requirements.

        Entrance

        Comment. One commenter requested clarification on whether "entrance" refers to an entry door to a dwelling unit, or an entry door to the building.
        Response. As used in the Guidelines, "entrance" refers to an exterior entry door. The definition of "entrance" has been revised in the final Guidelines to clarify this point, and the term "entry" is used instead of "entrance" when referring to the entry into a unit when it is interior to the building.

        Ground Floor

        As noted above, under the discussion of covered multifamily dwellings, several commenters requested clarification concerning "ground floor" and "ground floor dwelling unit". In response to these comments, the Department has included a definition for "ground floor" in the final Guidelines. The Department has incorporated the definition of "ground floor" found in the Fair Housing regulations (24 CFR 100.201), and has expanded this definition to address specific concerns related to implementation of the Guidelines. In the final Guidelines, "ground floor" is defined as follows:

         

          "Ground floor" means a floor of a building with a building entrance on an accessible route. A building may have one or more ground floors. Where the first floor containing dwelling units in a building is above grade, all units on that floor must be served by a building entrance on an accessible route. This floor will be considered to be a ground floor.

          Specific comments concerning ground floor units are as follows:

          Comment. (Nonresidential ground floor units) Two commenters advised that, in many urban areas, buildings are constructed without an elevator and with no dwelling units on the ground floor. The ground floor contains either parking, retail shops, restaurants or offices. To bring these buildings into compliance with the Act, one of the commenters recommended that the Department adopt a proposal under consideration by the International Conference of Building Officials (ICBO). The commenter stated that the proposal provides that, in buildings with ground floors occupied by parking and other nonresidential uses, the lowest story containing residential units is considered the ground floor. Another commenter recommended that a building should be exempt from compliance with the Act's requirements if the ground floor is occupied by a non-residential use (including parking). The commenter stated that if an elevator is to be provided to serve the upper residential floors, then the elevator should also serve the ground floor, and access be provided to all the dwelling units.
          Response. The Department believes that the definition of "ground floor unit" incorporated in the final Guidelines addresses the concerns of the commenters.

          Comment. (More than one ground floor) One commenter requested guidance on treatment of nonelevator garden apartments (i.e., apartment buildings that generally are built on slopes and contain two stories in the front of the building and three stories in the back). The commenter stated that these buildings arguably may be said to have two ground floors. The commenter requested that the Department clarify that, if a building has more than one ground floor, the developer must make one ground floor accessible -- but not both -- and the developer may choose which floor to make accessible. Another commenter suggested that, in a garden-type apartment building, the floor served by the primary entrance, and which is located at the parking lot level, is the floor which must be made accessible.
          Response. In the preamble to the final Fair Housing rule, the Department addressed the issue of buildings with more than one ground floor. (See 54 3244, 24 CFR Ch. I, Subch. A, App. I at 576 (1990).) The Department stated that if a covered building has more than one floor with a building entrance on an accessible route, then the units on each floor with an accessible building entrance must satisfy the Act's accessibility requirements. (See the discussion of townhouses in nonelevator buildings above.)

          Handicap

          Comment. Several commenters requested that the Department avoid use of the terms "handicap" and "handicapped persons", and replace them with the terms "disability" and "persons with disabilities".
          Response. "Handicap" and "handicapped persons" are the terms used by the Fair Housing Act. These terms are used in Guidelines and regulations to be consistent with the statute. Principle of Reasonableness and Cost

          Comment. Four commenters noted that, in the preamble to the proposed guidelines, the Department indicated that the Fair Housing Accessibility Guidelines were limited by a "principle of reasonableness and cost". The commenters requested that the Department define this phrase.
          Response. In the preamble to the proposed guidelines, the Department stated in relevant part as follows: "These guidelines are intended to provide a safe harbor for compliance with respect to those issues they cover. * * * Where the ANSI Standard is not applicable, the language of the statute itself is the safest guide. The degree of scoping, accessibility, and the like are of course limited by a principle of reasonableness and cost." (55 FR 24371)
          In House Report No. 711, the accessibility requirements of the Fair Housing Act were referred to by the Congress as "modest" (House Report at 25), "minimal" and "basic features of adaptability" (House Report at 27). In developing the Fair Housing Accessibility Guidelines, the Department was attentive to the fact that Congress viewed the Act's accessibility requirements as reasonable, and that the Guidelines for these requirements should conform to this "reasonableness" principle -- that is, that the Guidelines should provide the level of reasonable accessibility envisioned by Congress, while maintaining the affordability of new multifamily construction. The Department believes that the final Guidelines conform to this principle of reasonableness and cost.

          Slope

          Comment. One commenter, the Building Officials Code Administrators International, Inc. (BOCA), requested clarification of the term, "slope". The commenter stated the definition indicates that slope is calculated based on the distance and elevation between two points. The commenter stated that this is adequate when there is a uniform and reasonably consistent change in elevation between points (i.e., one point is at the top of a hill and the other is at the bottom), but the definition does not adequately address land where a valley, gorge, or swale occurs between two points. The commenter stated that the definition also does not adequately address conditions where there is an abrupt change in the rate of slope between the points (i.e. a sharp drop off within a short distance, with the remaining distance being flat or sloped much more gradually).
          Response. Slope is measured from ground level at the entrance to all arrival points within 50 feet, and is considered impractical only when it exceeds 10 percent between the entrance and all these points. Since multifamily dwellings typically have an arrival point fairly close to the building, a significant change such as a sharp drop would likely result in an impractical slope. Minor variations, such as a swale, if more than 5 percent, would be easily graded or ramped; a gorge would be bridged or filled, in any event, if it was on an entrance route.

          Usable Door

          Comment. One commenter stated that a clear definition of "usable door" is required.
          Response. The Guidelines for Requirement 3 (usable doors) fully describe what is meant by "usable door" within the meaning of the Act.

          Section 3. Fair Housing Act Design and Construction Requirements This section reprints -100.205 (Design and Construction Requirements) from the Department's final rule implementing the Fair Housing Act. A reprint of -100.205 was included to provide easy reference to (1) the Act's accessibility requirements, as codified by -100.205; and (2) the additional examples of methods of compliance with the Act's requirements that are presented in this regulation.

           

         


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