2008-08-21, 12:20

By: Multifamily Real Estate Industry Team
On August 13, the US Attorney for the Southern District of New York filed suit against AvalonBay Communities and other development partners in Avalon Chrystie Place, a mixed-use property in Lower Manhattan which opened in 2005. At issue in the litigation are the requirements of the 1991 Fair Housing Act Amendments regarding accessibility for individuals with disabilities - a phrase which, in the FHAA context, deals principally with those who use wheelchairs. As a press release by AvalonBay points out, the suit does not claim that any specific person was discriminated against by the defendants; instead, the seven-page complaint is the standard Department of Justice pleading, with general allegations concerning the design of the property: inaccessible common areas, plus units lacking accessible routes (hallways wide enough for a wheelchair to be turned around), reinforcements for installation of grab bars in bathrooms, and other wheelchair-related problems in kitchen and bath areas. The defendants contend they complied fully with New York City's Local Law 58, which has been deemed the functional equivalent of the federal statutory requirements.

This filing is being heralded by DOJ as "the government's first lawsuit in Manhattan alleging violations of the Fair Housing Act in the design and construction of multifamily housing," while the disability rights community asserts that the law's requirements are often being disregarded in a conscious and knowing manner. Additionally, the New York Times reports that the US Attorney has sent letters to leading architects and landlords in the city, warning them of possible noncompliance and suggesting they may be next.

It should be remembered that legal complaints are only contentions. The Fair Housing Act Amendments are broadly-worded, and the requirements of the statute are subject to exceptions and interpretations which make any comment on the merits of the government's claim inappropriate. There is a great deal of room for differences of opinion, as well as for unpredictable variances in outcomes, and the prudent multifamily industry player makes use of every available resource to attempt to avoid these issues where possible. However, neither the Department of Justice, HUD, nor private or public-interest plaintiffs are required to afford a defendant any sort of warning or opportunity for discussion before the litigation trigger is pulled. Devising an action plan entails a thorough knowledge of legal requirements starting at the design and construction stages as well as a multi-disciplinary response plan (architectural, communications, and legal) which is ready to put into action quickly. Operating in an environment in which the public is being told that the industry is acting in knowing disregard of the law requires that this issue be given a very high priority and that the record be corrected at every opportunity.

(This entry posted by Charlie Edwards, a member of Womble Carlyle's Labor and Employment Practice)


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