HOUSING ACCESSIBILITY: NAVIGATING THE COMPLEX FEDERAL AND STATE REQUIREMENTS M DAVID KROOT MARY JANE JAGODZINSKI ISABEL BROWN COMMUNITY HOUSING WORKS GOLDFARB & LIPMAN LLP DAN LEVINE, ARCHITECT THE JOHN STEWART COMPANY October 13, 2016 San Diego Housing Federation 25th Annual Affordable Housing Conference

WHAT WE ARE FOCUSING ON TODAY Goldfarb & Lipman LLP WHAT WE ARE FOCUSING ON TODAY 2 Federal and State Accessibility Construction and Design Requirements for New Construction and Alterations Fair Housing Act (FHA) Rehabilitation Act of 1973- Section 504 Americans with Disabilities Act (ADA) Title II & Title III Title 24 of California Code of Regulations (CA Building Code)

WHAT WE ARE NOT FOCUSING ON 3 Reasonable Accommodations Reasonable Modifications Definitions of Disability Application & Waitlist procedures Permissible Inquiries Existing Buildings not undergoing rehab/repair ***See Master Accessibility slides handout for information on these topics

YOUR QUESTIONS ????? What if we are using federal funds? 4 What if we are using federal funds? What if more than one law applies? What if it’s impossible to comply? Is there a difference between rehab and repairs? Who enforces these requirements? What about single family homes? ????????

Goldfarb & Lipman LLP FHA – APPLICATION 5 Attached Buildings of 4 or More Units built after March 13, 1991 Ground Floor Units or All Units With Elevator Rental and Ownership Transitional housing and homeless shelters Does Not Apply To: Detached Single Family Homes Classic Townhomes (without elevator) ***Rehabilitation Remember – Site accessibility

Goldfarb & Lipman LLP FHA - REQUIREMENTS 6 7 Design and Construction Requirements, intended to impose “modest accessibility requirements”, not full accessibility Accessible Entrance on Accessible Route Accessible and Usable Common Areas Usable Doors Accessible Route Into and Through Unit Light Switches, Outlets, Thermostats, and Other Controls in Accessible Location Reinforcements in Bathroom Walls Usable Kitchens and Bathrooms Accessible route impracticability exception for terrain or other unusual characteristics of the site

FHA - STANDARDS Choice of 10 Safe Harbor Guidelines: 7 Choice of 10 Safe Harbor Guidelines: i.e. A117.1 When using ANSI must also consult the Act, HUD Regs., and HUD Guidelines for scoping requirements Fair Housing Act Design Manual Follow without modification or waiver Enforcement by HUD or DoJ regardless of local building department review, approval or waiver

SECTION 504 Applies to recipients of federal financial assistance 8 Applies to recipients of federal financial assistance Look to regulations of federal agency providing assistance for guidance

HUD SECTION 504 - NEW CONSTRUCTION 9 Rental or ownership housing projects (including detached single family homes and townhomes) with 5 or more units A minimum of 5% of units accessible to the mobility impaired (round up) An additional 2% of units accessible to vision and hearing impaired (round up) Common areas accessible

HUD SECTION 504 - SUBSTANTIAL ALTERATIONS 10 Substantial Alteration to Housing: cost of the alteration must be at least 75% of the replacement cost of the facility 15 or more units comply with new construction requirements

HUD SECTION 504 – OTHER ALTERATIONS 11 Accessible to the “Maximum Extent Feasible” (if will be undue financial or administrative burden or a fundamental alteration may not need to comply) 5% cap on the percent total of units that need to be made accessible The entire unit must be made accessible if alterations to single elements add up to alterations of the entire unit Excludes normal maintenance, repair, re-roofing, interior decoration or changes to mechanical and electrical systems

HUD SECTION 504 - STANDARDS 12 Uniform Federal Accessibility Standards (UFAS) One Accessible Route One Accessible Full Bathroom Accessible Kitchen, Living Room and Dining Area One Bedroom in 1BR or Two Bedrooms in 2BR and Greater: Accessible and on Accessible Path **Adaptability Is Sufficient (Kitchens and Bathrooms) HUD May 23, 2014 Notice re: use of 2010 Standards under Title II of the ADA as an alternate accessibility standard to UFAS

ADA – TITLE II & TITLE III 13 Civil Rights protection to individuals with disabilities Enacted to fill gaps between FHA and Section 504 and extend Section 504 to all state and local governments regardless of receipt of Federal Funds Beginning March 15, 2012, both Title II & III must comply with 2010 ADA Standards for Accessible Design *Key change for Title II – no longer can choose between UFAS and ADA Standards

TITLE II - APPLICATION Applies to: Goldfarb & Lipman LLP TITLE II - APPLICATION 14 Applies to: “Public entities” which includes state and local governments and their instrumentalities Private entities in contract with public entities to provide services **Probably applies to private entities that receive funds from public entities but no clear guidance from DoJ or HUD HUD has enforcement rights over state and local housing assistance State funded programs must comply with Title II of the ADA.

TITLE II - NEW CONSTRUCTION & ALTERATIONS Goldfarb & Lipman LLP TITLE II - NEW CONSTRUCTION & ALTERATIONS 15 Buildings constructed by, on behalf of, or for use by a public entity must be designed and constructed so readily accessible and usable Alterations affecting usability must be made such that, to the maximum extent feasible, the altered portions of the building are accessible Applies to rental and for-sale Residential Facilities; coordinate with Section 504

TITLE III - APPLICATION Goldfarb & Lipman LLP TITLE III - APPLICATION 16 Applies to “public accommodations” (i.e., private entities that own, operate or lease places of public accommodation) and commercial facilities (i.e. office buildings) Places of Public Accommodation include: Restaurants, hotels, theaters, retail stores Social service centers, homeless shelters, parks Does not apply to housing but does apply to a place of public accommodation within the housing (e.g. sales office, community room open to public) Both landlord and tenant have obligation to comply – but lease can allocate responsibility

TITLE III - NEW CONSTRUCTIONS & ALTERATIONS Goldfarb & Lipman LLP TITLE III - NEW CONSTRUCTIONS & ALTERATIONS 17 All newly constructed places of public accommodation and commercial facilities must be accessible to the extent that it is not structurally impracticable Structurally impracticable is rare – unique terrain characteristics Alterations to existing places of public accommodation and commercial facilities must be accessible to the maximum extent feasible (technical infeasibility exception)

TITLE 24 California Building Code (part 2 of Title 24) Goldfarb & Lipman LLP TITLE 24 18 California Building Code (part 2 of Title 24) Published triennially – current edition 2013; effective January 1, 2014 (adopts 2010 ADA Standards as the model code for Chapter 11B Accessibility) Supplement/Errata pages effective July 1, 2015 Application date for building permit establishes which edition of the building code applies More restrictive local amendments allowed due to climactic, geological or topographical conditions

Goldfarb & Lipman LLP TITLE 24 – HCD & DSA 19 Accessibility regulations of the Department of Housing and Community Development (HCD) – mirror FHA requirements Chapter 11(A) Enforcing agencies: local building departments; HCD Accessibility regulations of the Division of the State Architect (DSA) – mirror ADA requirements Chapter 11(B) Enforcing agencies: local building departments; government agencies providing funding

TITLE 24 - HCD APPLICATION Goldfarb & Lipman LLP TITLE 24 - HCD APPLICATION 20 Applies to newly constructed “covered multifamily dwellings” and “multistory dwelling units” Applies to new common use areas serving covered multifamily dwellings Does not apply to rehabilitation of buildings first constructed prior to March 13, 1991 Maintain in compliance with standards in effect at the time of construction

TITLE 24 - HCD APPLICATION 21 Covered Multifamily Dwellings: All dwelling units in buildings of 3 or more units or 4 or more condos if building has an elevator Ground floor units if no elevator **Multistory Dwelling Units: Condo or apartment unit with finished living space on one floor and on the floor(s) above or below NOT a “carriage unit”

TITLE 24 - HCD STANDARDS Multifamily Dwelling Units: Goldfarb & Lipman LLP TITLE 24 - HCD STANDARDS 22 Multifamily Dwelling Units: Accessible route into and through unit Bathroom & Kitchen accessibility requirements Accessible environmental controls At least one accessible route within boundaries of site from public transportation, accessible parking, sidewalk, or public street and through the site Accessible parking

TITLE 24 - HCD MULTISTORY Multistory Dwelling Units: 23 Multistory Dwelling Units: At least 10% ground floor units must have: An accessible route to primary entry level of unit; At least one accessible bathroom or powder room on the primary level; All rooms on primary entry must be served by an accessible route and comply with applicable accessibility requirements For buildings with an elevator, the story of the unit that is served by the elevator is considered the ground floor and all such units must comply with these requirements

TITLE 24 - DSA APPLICATION Goldfarb & Lipman LLP TITLE 24 - DSA APPLICATION 24 Applies to Public Housing: housing facilities owned, operated, or constructed by, for or on behalf of a public entity including but not limited to: Privately Owned Housing Made Available For Public Use as Housing Public Use in the context of public housing: is the provision of housing programs by, for or on behalf a public entity. Applies to Places of Public Accommodation including: hotels, restaurants, theatres, grocery stores, day care centers, homeless shelters, office buildings, public curbs & sidewalks

TITLE 24 - DSA NEW CONSTRUCTION Goldfarb & Lipman LLP TITLE 24 - DSA NEW CONSTRUCTION 25 Public Housing Facilities (233.3) (tracks ADA Title II) 5% of the total - mobility w/ accessible route; accessible kitchen & bathroom 2% of the total - communication features **Adaptable units complying with 11A (# required reduced by the 5%) – ground floor units, all if elevator Common areas accessible, except those not serving accessible units do not need to be accessible

TITLE 24 - DSA ALTERATIONS 26 Definition of Alteration Any construction or renovation to an existing structure other than repair or addition; Includes: remodeling, rehabilitation, renovation, resurfacing circulation paths Not included: Normal maintenance, reroofing, painting, mechanical changes unless they affect building usability No definition of substantial alteration If building vacated & >15 units = new construction Alterations to individual units, where a bathroom & kitchen is substantially altered, and at least one other room is altered – apply to altered units till comply with new construction %

TCAC ACCESSIBILITY REQUIREMENT 27 All projects must comply with Chapter 11(B) regarding accessibility to “privately owned housing made available for public use” Minimum of 10% of the units with mobility features, and 4% with communications features. If a rehabilitation applicant does not propose to meet these requirements its CNA must show that the standards not proposed to be met are either unnecessary or excessively expensive

TCAC SENIOR HOUSING ACCESSIBILITY REQUIREMENT 28 Effective for projects allocated credits beginning in 2015 For new construction - 50% of all units on an accessible path must be mobility accessible under Chapter 11(B). For rehabilitation - 25% of all units on an accessible path must be mobility accessible under Chapter 11(B).

TCAC COMPETITIVE POINTS REQUIREMENT 29 Enhances Accessibility and Visitability (2 points) Incorporate 11(B) and Universal design in at least 50% of the units including accessible routs, lever hardware, fully accessible bathrooms, accessible kitchens, accessible master bedroom, wiring for audio & visual bells Certified Accessibility Specialist confirmation

KEY QUESTIONS TO ASK TO DETERMINE WHICH LAWS APPLY Goldfarb & Lipman LLP KEY QUESTIONS TO ASK TO DETERMINE WHICH LAWS APPLY 30 Are there any public funds or Tax Credits Federal State or local Rehabilitation or New Construction Is rehab substantial Single family detached or multifamily attached Greater than 3 or 4 units Multistory/townhome style Any commercial space open to general public Building permit application date

KEY ISSUES ONCE DETERMINE WHICH LAWS APPLY Goldfarb & Lipman LLP KEY ISSUES ONCE DETERMINE WHICH LAWS APPLY 31 Do all units or only a percentage need to be accessible Which standards apply Fair Housing Act Safe Harbor UFAS 2010 ADA Standards CA Title 24 Any site constraints/hardships