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:
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:
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.
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, 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:
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.