1. 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, San Diego Housing Federation 25th Annual Affordable Housing Conference

2. 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 Section 504
Americans with Disabilities Act (ADA)
Title II & Title III
Title 24 of California Code of Regulations (CA Building Code)

3. WHAT WE ARE NOT FOCUSING ON3
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

4. 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?
????????

5. 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

6. 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

7. 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

8. SECTION 504 Applies to recipients of federal financial assistance8
Applies to recipients of federal financial assistance
Look to regulations of federal agency providing assistance for guidance

9. HUD SECTION 504 - NEW CONSTRUCTION9
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

10. HUD SECTION 504 - SUBSTANTIAL ALTERATIONS10
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

11. HUD SECTION 504 – OTHER ALTERATIONS11
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

12. HUD SECTION 504 - STANDARDS12
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

13. ADA – TITLE II & TITLE III13
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

14. 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.

15. 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

16. 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

17. 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)

18. 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

19. 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

20. 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

21. TITLE 24 - HCD APPLICATION21
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”

22. TITLE 24 - HCD STANDARDS Multifamily Dwelling Units:
Goldfarb & Lipman LLP
TITLE 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

23. 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

24. 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

25. 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

26. TITLE 24 - DSA ALTERATIONS26
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 %

27. TCAC ACCESSIBILITY REQUIREMENT27
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

28. TCAC SENIOR HOUSING ACCESSIBILITY REQUIREMENT28
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).

29. TCAC COMPETITIVE POINTS REQUIREMENT29
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

30. 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

31. 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