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Fair
Housing Accessibility Guidelines
Table of Contents
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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:
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the conversion of warehouse and commercial space to dwelling units;
and
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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.
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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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