UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA,
Plaintiff,
v.
ALDRIDGE & SOUTHERLAND
BUILDERS, INC.; and
RIVERS & ASSOCIATES, INC.,
Defendants.
_____________________________
CONSENT DECREE
The United States files this Consent Decree simultaneously with its Complaint against
Aldridge and Southerland Builders, Inc. (1) ("Aldridge") and Rivers & Associates, Inc. ("Rivers"),
alleging violations of Sections (f)(1)-(3) of the Fair Housing Act, 42 U.S.C. §§ (f)(1)-(3), as
amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3619 (the Act).
Defendant Rivers designed and defendant Aldridge & Southerland developed and
constructed Bradford Park Apartments ("Bradford Park") located in Greenville, North Carolina.
Bradford Park has been fully constructed and is currently being operated and managed by
Bradford Park, LLC. Bradford Park consists of 226 dwelling units designed and constructed for
first occupancy after March 13, 1991. The United States' Complaint alleges that the defendants
engaged in a pattern or practice of discrimination against persons with disabilities by failing to
design and construct Bradford Park with the features of accessible and adaptable design set forth
in 42 U.S.C. § 3604(f)(3)(C).
The Act requires that, for residential buildings with four or more units, all ground-floor
units in non-elevator buildings are "covered units" and must include certain basic features of
accessible and adaptable design to make the housing usable by a person with a disability. 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(A). At Bradford Park, 108 of the 226 total units are
located on the ground-floor and in non-elevator buildings containing four or more units. Thus,
those ground-floor units are "covered multi-family dwellings" within the meaning of the Act.
The design requirements under the Act include: (a) public use and common use areas
that are readily accessible to and usable by persons with disabilities; (b) doors designed to allow
passage into and within all premises that are sufficiently wide to allow passage by persons in
wheelchairs; (c) an accessible route into and through the dwelling; (d) light switches, electrical
outlets, thermostats, and environmental controls in accessible locations; (e) reinforcements in
bathroom walls to allow later installation of grab bars; and (f) usable kitchens and bathrooms
such that an individual in a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C). The United States alleges in its Complaint that, as originally
designed and constructed, the 108 "covered units" at Bradford Park do not meet the design
requirements of the Act.
The parties agree that this Court has jurisdiction over the subject matter of this case.
Defendants admit that they failed to design and construct Bradford Park in compliance with the
Act. The parties further agree that the controversy should be resolved without further
proceedings and without an evidentiary hearing. Therefore, the parties have consented to the
entry of this Consent Decree as indicated by the signatures appearing below.
It is hereby ORDERED, ADJUDGED and DECREED:
Defendants, their officers, employees, agents, successors and assigns and all other
persons in active concert or participation with them are permanently enjoined from
discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 U.S.C. §
3604(f)(1) - (3), and as set forth in the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472
(1991) (the Guidelines).
The parties recognize that 108 ground-floor units at Bradford Park do not meet the
standards of the Act and the Guidelines. Because these 108 units are fully constructed, there are
significant practical, structural, and cost impediments to bringing these units into compliance
with the Act. To address these violations, defendants have agreed to take the actions set forth
below. These actions are reasonable and practicable and will increase the number of housing
units on the market with features of accessible and adaptable design.
- NON-DISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION
- Every twelve (12) months, for a period of five (5) years from the date of entry of this
Consent Decree, defendant Aldridge shall, regarding any covered, multi-family dwellings
intended to be developed or built by it, as evidenced by the completion of the site plans and
building construction documents, submit to counsel for the United States (2) the following
information: (1) the name and address of the project, (2) a description of the project and the
individual units, (3) the name of any site engineer involved with the project, (4) the name of the
architect, and (5) a statement from any architect involved with the project acknowledging and
describing his or her knowledge of and training in the requirements of § 3604(f)(3)(C) of the Act
and in the field of accessible design and certifying that he/she has reviewed such plans and that
the plans include design specifications that comply with the requirements of the Act and
Guidelines.
- Every twelve (12) months, for a period of five (5) years from the date of the entry of
this Consent Decree, for all design contracts for covered multifamily dwellings entered into by
defendant Rivers as evidenced by the completion of the site plans and building construction
documents, defendant Rivers shall submit to counsel for the United States the following
information: (1) the names and addresses of the builders and developers; (2) the name and
address of the project; (3) the type of multi-family dwelling that will be constructed (i.e.
condominiums or apartments) and the total number of dwelling units planned; and (4) a written
statement that the plans include design specifications that comply with the requirements of the
Act and the Guidelines.
- COMPENSATION OF AGGRIEVED PERSONS
- For purposes of this Decree, an "aggrieved person" includes:
- Any person who was discouraged or precluded from living at Bradford
Park Apartments or was otherwise harmed because the covered units or the public
and common use areas of the development did not comply with the Act and the
Guidelines; or
- Any current or former tenant of a covered unit who paid to modify his
or her unit so that the unit would comply with the Act and Guidelines or was
otherwise harmed by the alleged failure of the developments to meet the
requirements of the Act.
- Defendant Aldridge has distributed the notice contained in Appendix "A" to all
current tenants of Bradford Park Apartments, as well as persons who inquired about or applied to
rent a covered unit of whom defendant has a record of their name and address, within 1 year of
the date of the entry of this Consent Decree.
- Persons who believe that they are "aggrieved persons" shall have six months from the
date of entry of this Consent Decree to contact the United States to be eligible to receive
monetary compensation as an aggrieved person under the terms of this Consent Decree.
- No later than 180 days after the filing of a timely claim, the United States shall
determine whether or not any claimant who has contacted the United States as set forth in
subparagraph (C) above, is an aggrieved person as defined by subparagraph (A) above and shall determine an appropriate amount of damages for each such person, provided that:
- No person shall be paid any amount pursuant to this paragraph before he or she
has executed a written release of all claims, legal or equitable, in the form of Appendix
"B" that he or she might have against the defendants relating to the claims asserted in this
lawsuit, and has executed a declaration under the penalty of perjury attesting to the facts
of the discrimination he or she has suffered; and
- The total amount to be paid by the defendants to any individual aggrieved
person pursuant to this Section shall not exceed Five Thousand Dollars ($5,000) over the
individual's out-of-pocket damages.
- The United States shall notify defendants in writing of its determinations pursuant to
subparagraph (D) above. Defendants shall have ten (10) days after receipt of written notice to
submit to the United States a written objection to the determination of the United States pursuant
to subparagraph (D). The United States shall provide a final notice of determination to
defendants within thirty (30) days of receiving any objection from defendants. This notice shall
set forth the aggrieved person who are entitled to compensation and the amount due to each such
person. The United States shall give due consideration to the objections of the defendants in
determining the amount paid to any aggrieved person.
- No later than thirty (30) days after receiving a final notice of determination pursuant
to subparagraph (E), defendants shall deliver to counsel for the United States checks payable to
the aggrieved person as directed in the notice. Counsel for the United States shall not distribute
any check to an aggrieved person until the United States has received the person's executed
release of claims.
- Retrofits to Public and Common Use Areas. Defendant Aldridge has made the
following retrofits to the public and common use areas of Bradford Park:
- Retrofitted the rental office to meet all of the requirements of the Act and
Guidelines applicable to rental offices including, but not limited to, providing an
accessible parking stall and curb cut in front of the rental office that provides the
shortest accessible route from such parking space to the rental office; and
- Constructed at least one curb ramp that meets the requirements of ANSI § 4.7, to
access each accessible route to each residential building.
Additionally, Defendant Aldridge will construct accessible routes to all resident mailboxes that
meet all the requirements of the Act and Guidelines.
- Compliant Unit Leasing/Vacancy. Defendant Aldridge agrees to make available to
prospective tenants one fully retrofitted ground-floor one bedroom unit and ground-floor two
bedroom unit at Bradford Park which meet the requirements of the Act and Guidelines.
Defendant Aldridge shall implement the following retrofit schedule to meet the requirements of
this Section:
- Within 30 days of the date of the entry of this Consent Decree, defendant
Aldridge shall retrofit at least one ground-floor one bedroom unit and one
ground-floor two bedroom unit at Bradford Park so that such units are
fully compliant with the Act and the Guidelines;
- Defendant Aldridge shall provide any prospective tenant who visits
Bradford Park Apartments with the notice attached hereto as Appendix
"C" which will inform the prospective tenant that a unit is available with
the features of accessible and adaptive design required by the Act, that
explains the features of accessible and adaptive design, and that a unit with
these features is available upon request for immediate viewing and rental;
- Defendant Aldridge may lease the fully compliant units to persons who
specifically request a unit that includes features of accessible and
adaptable design; and
- If defendant Aldridge leases a fully compliant unit or any subsequent unit
that is retrofitted pursuant to the requirements of this Section, defendant
Aldridge shall retrofit another ground-floor unit with a similar floor plan
within thirty (30) days from the date the fully compliant unit is rented (3) and
thereafter as necessary to ensure that for the term of the Consent Decree a
fully compliant ground-floor one bedroom unit and two bedroom unit are
vacant and available at all times to be viewed and rented by any
prospective tenant who specifically requests a unit that includes features of
accessible and adaptable design.
- Additional Retrofits to Individual Units. Upon request by a current tenant or
prospective tenant of a ground-floor unit at Bradford Park, defendant Aldridge shall make all the
retrofits listed in Appendix "D" so that the unit includes the features of accessible and adaptable
design required by the Act and the Guidelines.
- Replacement Units. The purpose of the accessibility provisions of the Fair Housing
Act is to make all housing units that are covered by the Act usable by and adaptable for persons
with disabilities. As a result of the defendants' actions, there are 108 housing units that do not
comply with the accessibility and adaptability requirements of the Act, thereby increasing the
number of units in Greenville, North Carolina that are not usable by persons with disabilities.
Because of the significant practical, structural, and cost impediments to retrofitting all of the non-compliant units to add the features of accessible and adaptable design required by the Act,
defendants shall take the actions set forth below.
Multi-family Replacement Units.
- Defendant Aldridge shall construct 25% of the ground-floor units in the next two
multi-family residential developments constructed by Aldridge in a manner to
include the following features in addition to the features of accessible and
adaptable design required by the Act and Guidelines:
- At least one bathroom in the unit shall comply with ANSI (4) § 4.32.4,
except §§ 4.32.4.4 through 4.32.4.6. Where § 4.32.4 requires the
installation of grab bars, reinforcements for the later installation of grab
bars shall be sufficient; and
- All kitchens shall comply with ANSI § 4.32.5. The work surface required
under § 4.32.5.4 shall be located adjacent to the range/oven appliance.
Additionally, all oven/range appliances shall have either up-front controls
or controls grouped to one side so that an individual need not reach over
the burners on the appliance. If the controls are grouped to one side, the
work surface shall be adjacent to the side of the oven/range on which the
controls are located. (5)
- The 25% requirement must result in at least 15 ground-floor units meeting the
requirements of this Section in each of the next two multifamily residential
developments constructed by the defendant.
- The units that contain the added features of accessibility shall be distributed
among the classes of dwelling units measured in terms of number of bedrooms. (6)
Such units shall be spread throughout the development so that the units are not
segregated from the other units in the development. Defendant Aldridge may not
charge extra rent, a higher deposit, or any type of premium because the apartment
contains the additional accessible features. The cost of the apartments shall be
identical to similar apartments that do not contain the additional accessible
features.
- If Aldridge is solely the builder for a multi-family development, but not the owner
and/or developer, it shall use reasonable efforts to reach agreement with the owner
and/or developer to construct "replacement units" in such a multi-family
development. If reasonable efforts fail, Aldridge need not construct "replacement
units" in such multi-family development. Aldridge's failure to construct
"replacement units" in such a multi-family development does not relieve Aldridge
of its obligations under paragraph V.E. of this Consent Decree to construct
"replacement units." If Aldridge reaches agreement with the owner and/or
developer and constructs "replacement units" in such a multi-family
development, however, any such "replacement units" constructed will count
towards the successful completion of the Section V.E. requirement.
Failure to Construct Replacement Dwellings. If defendant Aldridge is for any
reason unwilling or unable to construct the thirty (30) multi-family replacement units as required
by subparagraph (D) within five years of the date of the entry of this consent decree, defendant
Aldridge shall pay SIXTY THOUSAND DOLLARS ($60,000) into a fund which shall be
distributed by the United States to an organization in North Carolina to assist individuals with
disabilities with making modifications to their residential dwellings to provide greater
accessibility. The amount defendant Aldridge shall contribute to the fund will be reduced
proportionally for each unit constructed pursuant to subparagraph (D). (7)
- ADDITIONAL REMEDIES APPLICABLE TO DEFENDANT RIVERS
- Within five (5) years from the entry of this Decree, Defendant Rivers shall donate 100
hours of technical assistance to non-profit groups approved by the United States which promote
fair housing, disability rights or affordable housing. The technical assistance may include, but
not be limited to, providing training on the FHA and FHAG design and construction
requirements and drafting plans for low-income accessible housing. Defendant Rivers shall
certify that it has met the 100-hour requirement by submitting to the United States statements
signed by the recipients of the technical assistance confirming Rivers' donation of technical
assistance. The signed statements must be submitted as required in Section IX(C)(3) below.
- Within thirty (30) days following the entry of this Decree, Defendant Rivers shall pay
FIVE THOUSAND DOLLARS ($5,000) to the United States as a civil penalty pursuant to
42 U.S.C. § 3614(d)(1)(C). Defendant Rivers shall make the check payable to the United States
and deliver it to counsel for the United States.
Within thirty (30) days of the date of entry of this Consent Decree, defendants shall
provide to all its supervisory employees, rental or sales agents, and site managers involved in the
design, construction, rental, or sale of multi-family dwellings covered by the Act: (1) a copy of
this Consent Decree; and (2) instruction on (i) the terms of this Consent Decree, (ii) the
requirements of the Act with a particular emphasis on the Act's design and construction
requirements, and (iii) their responsibilities and obligations under each. The training shall be
conducted by a qualified person or organization approved by the United States. Any expenses
associated with this training shall be borne by the defendants. Each new supervisory employee,
rental agent, or site manager retained by defendants during the term of this Decree must comply
with the above requirements within thirty (30) days after the date he or she commences an
employment, agency, or contractual relationship with defendant. Within thirty (30) days of the
completion of the training, defendants shall secure and deliver to counsel for the United States a
signed statement from each such employee, rental or sales agent, or site manager that he or she
has received, read, and understands this Decree and has attended the fair housing program.
- NOTICE TO THE PUBLIC OF DEFENDANT ALDRIDGE'S NON-DISCRIMINATION POLICY
Within ten (10) days of the date of entry of this Consent Decree, defendant Aldridge shall
post and prominently display in the sales or rental offices of all covered multi-family housing
owned or operated by it, a sign no smaller than ten (10) by fourteen (14) inches indicating that all
dwellings are available for sale or rental on a nondiscriminatory basis. Defendant Aldridge shall
also post such a sign in the sales or rental office of any other covered multi-family housing
developed or acquired by it during the effective period of this Consent Decree within ten (10)
days of commencing construction. A poster that comports with 24 C.F.R. Part 110 will satisfy
this requirement.
In addition, for the duration of this Consent Decree, in all future advertising in
newspapers, and on pamphlets, brochures and other promotional literature regarding Bradford
Park, defendant Aldridge shall place, in a conspicuous location, a statement that a dwelling unit,
including accessibility features for persons with disabilities required by the federal Fair Housing
Act, is available at Bradford Park.
- REPORTING AND DOCUMENT RETENTION REQUIREMENTS
- Sixty (60) days after the date of entry of this Consent Decree, defendants shall submit
to counsel for the United States an initial report regarding the Notification, and the educational
program, and containing signed statements of current supervisory employees, rental agents, and
site managers who have completed the educational program (see Section VII above).
- Twelve (12) months after the entry of this Consent Decree, and every twelve (12)
months thereafter for a term of five years from the date of the entry of this Consent Decree,
defendant Aldridge shall submit to counsel for the United States a report which includes the
following information:
- documents containing information and certifications for new construction (see
Section III above);
- signed statements of new supervisory employees, sales or rental agents, and
site managers who have completed the educational program during the most recent reporting
period (see Section VII above);
- a signed statement reporting the progress on the construction of the
replacement units required by Section V(D) above, including the number and location of the
replacement multifamily and single-family units constructed by defendant since the previous
report submitted to the United States;
- a signed statement reporting the number of fully compliant units rented and
replaced during the most recent reporting period pursuant to the requirements of V(B); and
- a signed statement reporting the name and address of any resident of Bradford
Park who has requested retrofits and the retrofits completed pursuant Section V(C).
- Twelve (12) months after the entry of this Consent Decree, and every twelve (12)
months thereafter for a term of five years from the date of the entry of this Consent Decree,
defendant Rivers shall submit to counsel for the United States a report which includes the
following information:
- documents containing information and certifications for new design contracts
(see Section III above);
- signed statements of new supervisory employees and agents who have
completed the educational program during the most recent reporting period (see Section VII above); and
- signed statements required by Section VI(A) certifying the number of hours of
technical assistance completed towards the 100 hour requirement.
- Defendants shall advise counsel for the United States in writing within fifteen (15)
days of receipt of any written administrative or legal complaint against it, or against any
employees or agents of defendant, regarding equal opportunity in housing. They shall also
promptly provide the United States all information it may request concerning any such
complaint.
- For the term of this Consent Decree, defendants are required to preserve all records
related to this Consent Decree, for all properties designed, constructed, owned, operated, or
acquired by them. Upon reasonable notice to the defendants, representatives of the United States
shall be permitted to inspect and copy any records of defendants or inspect any developments or
residential units under defendant Aldridge's control covered by the Act bearing on compliance
with this Consent Decree at any and all reasonable times; provided, however, that the United
States shall endeavor to minimize any inconvenience to defendants from such inspections.
- REVIEW OF RETROFITS AND CONSTRUCTION OF REPLACEMENT UNITS
Upon reasonable notice to the defendant, representatives of the United States shall be
permitted to inspect the retrofits and replacement units constructed by defendant Aldridge
pursuant to the provisions of this Consent Decree to ensure compliance with such provisions
including, but not limited to, availability of fully compliant units as required by Section V(B);
provided, however, that the United States shall endeavor to minimize any inconvenience to
defendant from such inspections.
- DURATION OF DECREE AND TERMINATION OF LEGAL ACTION
- This Consent Decree shall remain in effect for five (5) years and six (6) months
after the date of its entry.
- By consenting to the entry of this Decree, the parties agree that in the event it is
determined in any future action or proceeding brought by the United States or any agency thereof
that defendants have engaged in any future violation(s) of the Fair Housing Act after the date of
the entry of this Consent Decree, such violation(s) shall constitute a "subsequent violation"
pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii).
- The United States' Complaint shall be dismissed without prejudice to the right of
the United States to petition the Court, at any time during the duration of this Decree, to reopen
the case for the purpose of enforcing the Decree. The parties to this Consent Decree shall
endeavor in good faith to resolve informally any differences regarding interpretation of and
compliance with this Decree prior to bringing such matters to the Court for resolution.
Any time limits for performance imposed by this Consent Decree may be extended by the
mutual agreement of the parties.
Each party to this litigation will bear its own costs and attorney's fees associated with this
litigation.
It is so ORDERED this ___________________, day of January, 2001.
United States District Judge
Agreed to by the parties as indicated by the signatures of counsel below.
FOR PLAINTIFF UNITED STATES: |
FOR PLAINTIFF UNITED STATES: |
JANICE MCKENZIE COLE |
BILL LANN LEE Assistant Attorney General |
Fenita M. Shepard Assistant United States Attorney Civil Division 310 New Bern Avenie Suite 800 Raleigh, NC 87601-1461 Telephone: (919)856-4530 Fax: (919) 856-4821 |
JOAN A. MAGAGANA Chief ISABELLE M. THABAULT Deputy Chief SCOTT P. MOORE Attorney United States Department of Justice Civil Rights Division Housing & Civil Enforcement Section P.O. Box 65998 Washington, D.C. 20035-5998 (202) 307-3801 |
FOR DEFENDANT ALDRIDGE & SOUTHERLAND BUILDERS, INC. |
FOR DEFENDANT RIVERS & ASSOCIATES, INC. |
KENNETH WOOTEN WARD & SMITH P.O. Box 867 New Bern, North Carolina 28563 (252) 633-1000 |
JOHN L. SHAW POYNER & SPRUILL 3600 Gleenwood Avenue Raleigh, North Carolina 27612 (919) 783-2809 |
1. Defendant Aldridge & Southerland Builders, Inc. was responsible for the development
and construction of Bradford Park Apartments. The building permits for Bradford Park on file at
the City of Greenville Planning Department mistakenly list the builder as Aldridge &
Southerland, Inc., which is a separate real estate sales business which was not involved in the
development or construction of Bradford Park.
2. For purposes of this Decree, counsel for the United States is Chief, Housing and Civil
Enforcement Section, Civil Rights Division, United States Department of Justice, P. O. Box
65998, Washington, D.C. 20035-5998, Attn: DJ# 175-54-129.
3. Except that if, upon rental of a fully compliant unit, there are no other units with a similar
floor plan available for retrofitting and rental, defendant Aldridge shall fully retrofit the next
ground-floor unit with a similar floor plan that becomes vacant within thirty (30) days of the date
such unit becomes vacant.
4. ANSI refers to the American National Standard for Buildings and Facilities - Providing
Accessibility and Usability for Physically Handicapped People A117.1-1986.
5. For purposes of constructing multi-family replacement units under this subparagraph, the
"adaptability" provisions of ANSI §§ 4.32.2 and § 4.32.3 shall not apply.
6. For example, if the development has 40 two bedroom ground-floor units and 80 one
bedroom ground-floor units, 10 of the two bedroom units and 20 of the one bedroom units must
be constructed to include the added features of accessibility required under this subparagraph.
7. For example, if defendant Aldridge constructs only 15 total replacement units within five
years of the date of the entry of this Consent Decree, defendant Aldridge shall pay $30,000 into
the fund described in this subparagraph
Document Filed: January 19, 2000