V - 3 Continued...

Response. Sections 100.205(g) and (h) of the Fair Housing regulations implement Sections 804(f)(5)(B) and (C), and Section 804(f)(6)(b) of the Fair Housing Act. The language of ßß100.205(g) and (h) is taken directly from these statutory provisions. The Congress, not the Department, made the decision that determinations of compliance or noncompliance with the Act by a State or unit of general local government shall not be conclusive in enforcement proceedings. The Department, however, agrees with the position taken in the statute. The Department believes that it would be inappropriate to accord particular "weight" to determinations made by a wide variety of State and local government agencies involving a new civil rights law, without first having the benefit of some experience reviewing the accuracy of the determinations made by State and local authorities under the Fair Housing Act.

Comment. Two commenters stated that local building departments, especially those in smaller urban areas and in rural areas, do not have the manpower or expert knowledge to assure a proper determination of compliance, particularly in "close call" situations. The commenters recommended that liability for any infractions exclude local building departments unless the Department is willing to provide qualified personnel from its local field office to attend staff reviews of every building permit request.
Response. The Department is reluctant to assume that State and local jurisdictions, by performing compliance reviews, will subject themselves to liability under the Fair Housing Act, particularly in light of section 804(f)(5)(C) of the Act, which encourages States and localities to make reviews for compliance with the statute; and the implicit recognition, under Section 804(f)(6)(B), that these reviews may not be correct.

Comment. With reference to a violation of the Act's requirements, several commenters questioned how violations of the Act would be determined, and what the penalty would be for a violation. The commenters asked whether a builder would be cited, and fined, for each violation per building, or for each violation per unit.
Response. If it is determined that a violation of the Act has occurred, a Federal District Court or an administrative law judge (ALJ) has the authority to award actual damages, including damages for humiliation and emotional distress; punitive damages (in court) or civil penalties (in ALJ proceedings); injunctive relief; attorneys fees (except to the United States); and any other equitable relief that may be considered appropriate. Whether a violation will be found for each violation per building, for each violation per unit, or on any other basis, is properly left to the courts and the ALJs.

Enforcement Mechanisms.
In the proposed guidelines, the Department solicited public comment on effective enforcement mechanisms (55 FR 24383-24384). Specifically, the Department requested comment on the effectiveness of: annual surveys to assess the number of projects developed with accessible buildings; recordkeeping requirements; and a "second opinion" by an independent, licensed architect or engineer on the site impracticality issue. The Department stated that comments on these proposals would be considered in connection with forthcoming amendments to the Fair Housing regulation.

The Department appreciates all comments submitted on the proposed enforcement mechanisms, and the suggestions offered on other possible enforcement mechanisms, such as a preconstruction review process, certification by a licensed architect, engineer or other building professional that a project is in compliance with the Act, and certification of local accessibility codes by the Department. All these comments will be considered in connection with future amendments to the Fair Housing Act regulation.

First Occupancy

Comment. A number of commenters requested clarification of the determination of "first occupancy" after March 13, 1991. A few commenters referred to the Act's first occupancy requirement as that of "ready for occupancy" by March 13, 1991.
Response. The phrase "ready for occupancy" does not correctly describe the standard contained in the Fair Housing Act. The Act states that covered multifamily dwellings subject to the Act's accessibility requirements are those that are "for first occupancy" after March 13, 1991. The standard, "first occupancy," is based on actual occupancy of the covered multifamily dwelling, or on issuance of the last building permit, or building permit renewal, on or before January 13, 1990. Where an individual is relying on a claim that a building was actually occupied on March 13, 1991, the Department, in making a determination of reasonable cause, will consider each situation on a case-by-case basis. As long as one dwelling unit in a covered multifamily dwelling is occupied, the one occupied dwelling unit is sufficient to meet the requirements for actual occupancy. However, the question of whether the occupancy was in compliance with State and local law (e.g., pursuant to a local occupancy permit, where one is required) will be a crucial factor in determining whether first occupancy has been achieved.

Comment. Several commenters requested clarification of "first occupancy", with respect to projects involving several buildings, or projects with extended build-out terms, such as planned communities with completion dates 5 to 10 years into
the future.
Response. "First occupancy" is determined on a building-by-building basis, not on a project-by-project basis. For a project that involves several buildings, one building in the project could be built without reference to the accessibility requirements, while a building constructed next door might have to comply with the Act's requirements. The fact that one or more buildings in a multiple building project were occupied on March 13, 1991 will not be sufficient to afford an exemption from the Act's requirements for other buildings in the same project that are developed at a later time.

Costs of Adaptation.

Comment. A few commenters requested clarification on who incurs the cost of making a unit adaptable for a disabled tenant.
Response. All costs associated with incorporating the new design and construction requirements of the Fair Housing Act are borne by the builder. There are, of course, situations where a tenant may need to make modifications to the dwelling unit which are necessary to make the unit accessible for that person's particular type of disability. The tenant would incur the cost of this type of modification -- whether or not the dwelling unit is part of a multifamily dwelling exempt from the Act's accessibility requirements. For dwellings subject to the statute's accessibility requirements, the tenant's costs would be limited to those modifications that were not covered by the Act's design and construction requirements. (For example, the tenant would pay for the cost of purchasing and installing grab bars.) For dwellings not subject to the accessibility requirements, the tenant would pay the cost of all modifications necessary to meet his or her needs. (Using the grab bar example, the tenant would pay both the cost of buying and installing the grab bars and the costs associated with adding bathroom wall reinforcement.)

Section 100.203 of the Fair Housing regulations provides that discrimination includes a refusal to permit, at the expense of a handicapped person, reasonable modifications of existing premises occupied or to be occupied by that person, if modifications are necessary to afford the person full enjoyment of the premises. In the case of a rental, the landlord may reasonably condition permission for a modification on the renter's agreeing to restore the interior of the unit to the condition that existed before its modification -- reasonable wear and tear excepted. This regulatory section provides examples of reasonable modifications that a tenant may make to existing premises. The examples include bathroom wall reinforcement. In House Report No. 711, the Congress provided additional examples of reasonable modifications that could be made to existing premises by persons with disabilities:

"For example, persons who have a hearing disability could install a flashing light in order to `see' that someone is ringing the doorbell. Elderly individuals with severe arthritis may need to replace the doorknobs with lever handles. A person in a wheelchair may need to install fold-back hinges in order to be able to go through a door or may need to build a ramp to enter the unit. Any modifications protected under this section [Section 804(f)(3)(A)] must be reasonable and must be made at the expense of the individual with handicaps." (House Report at 25)

Reasonable Modification.

Comment. One commenter requested clarification concerning what is meant by "reasonable modification".
Response. What constitutes "reasonable modification" is discussed to some extent in the preceding section, "Costs of Adaptation", and also was discussed extensively in the preambles to both the proposed and final Fair Housing rules. (See 53 FR 45002-45003, 54 FR 3247-3248; 24 CFR Ch. I, Subch. A, App. I at 580-583 (1990).) Additionally, examples of reasonable modifications are provided in 24 CFR 100.203(c).

Scope of Coverage

Comment. A number of comments were received on the issue of which types of dwelling units should be subject to the Act's accessibility requirements, and the number or percentage of dwelling units that must comply with the Act's requirements.
Response. The Department lacks the authority to adopt any of the proposals recommended by the commenters. The type of multifamily dwelling subject to the Fair Housing Act's accessibility requirements, and the number of individual dwelling units that must be made accessible were established by the Congress, not the Department. The Fair Housing Act defines "covered multifamily dwelling" to mean buildings consisting of four or more units if such buildings have one or more elevators; and ground floor units in other buildings consisting of four or more units." (See Section 804(f)(7) of the Act.) The Fair Housing Act requires that covered multifamily dwellings for first occupancy after March 13, 1991 be designed and constructed in accordance with the Act's accessibility requirements. The Act does not permit only a percentage of units in covered multifamily dwellings to be designed in accordance with the Act's requirements, nor does the Department have the authority so to provide by regulation.

6. Other Matters

   Codification of Guidelines. In order to assure the availability of the Guidelines, and the preamble to the Guidelines, to interested persons in the future, the Department has decided to codify both documents. The Guidelines will be codified in the 1991 edition of the Code of Federal Regulations as Appendix II to the Fair Housing regulations (i.e., 24 CFR Ch. I, Subch. A, App. II), and the preamble to the Guidelines will be codified as Appendix III (i.e., 24 CFR Ch. I, Subch. A, App. III).

   Regulatory Impact Analysis. A Preliminary Impact Analysis was published in the Federal Register on September 7, 1990 (55 FR 37072-37129). A Final Regulatory Impact Analysis is available for public inspection during regular business hours in the Office of the Rules Docket Clerk, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, S.W., Washington, DC 20410-0500.

   Environmental Impact. A Finding of No Significant Impact with respect to the environment has been made in accordance with HUD regulations at 24 CFR Part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969. The Finding of No Significant Impact is available for public inspection during regular business hours in the Office of the Rules Docket Clerk, Office of the General Counsel, Department of Housing and Urban Development, Room 10276, 451 Seventh Street, S.W., Washington, D.C. 20410-0500.

   Executive Order 12606, The Family. The General Counsel, as the Designated Official under Executive Order No. 12606, The Family, has determined that this notice will likely have a significant beneficial impact on family formation, maintenance or well-being. Housing designed in accordance with the Guidelines will offer more housing choices for families with members who have disabilities. Housing designed in accordance with the Guidelines also may be beneficial to families that do not have members with disabilities. For example, accessible building entrances, as required by the Act and implemented by the Guidelines, may benefit parents with children in strollers, and also allow residents and visitors the convenience of using luggage or shopping carts easily. Additionally, with the aging of the population, and the increase in incidence of disability that accompanies aging, significant numbers of people will be able to remain in units designed in accordance with the Guidelines as the aging process advances. Compliance with these Guidelines may also increase the costs of developing a multifamily building, and, thus, may increase the cost of renting or purchasing homes. Such costs could negatively affect families' ability to obtain housing. However, the Department believes that the benefits provided to families by housing that is in compliance with the Fair Housing Amendments Act outweigh the possible increased costs of housing.

   Executive Order 12611, Federalism. The General Counsel, as the Designated Official under section 6(a) of Executive Order No. 12611, Federalism, has determined that this notice does not involve the preemption of State law by Federal statute or regulation and does not have federalism implications. The Guidelines only are recommended design specifications, not legal requirements. Accordingly, the Guidelines do not preempt State or local laws that address the same issues covered by the Guidelines.

   Accordingly, the Department adopts the guidelines that follow as the
   Fair Housing Accessibility Guidelines
   
   
   Dated

   
   
   
   Gordon H. Mansfield, Assistant Secretary for
   Fair Housing and Equal Opportunity

   
   
   
   Fair Housing Accessibility Guidelines--Design Guidelines
   for Accessible/Adaptable Dwellings

   
   

   Section 1. Introduction
   Authority
   Purpose
   Scope
   Organization of Guidelines
   Section 2. Definitions
   Section 3. Fair Housing Act Design and Construction Requirements
   Section 4. Application of the Guidelines
   Section 5. Guidelines
   Requirement 1. Accessible building entrance on an accessible route.
   Requirement 2. Accessible and usable public and common use areas.
   Requirement 3. Usable Doors.
   Requirement 4. Accessible route into and through the covered unit.
   Requirement 5. Light switches, electrical outlets, thermostats and other environmental controls in accessible locations.
   Requirement 6. Reinforced walls for grab bars.
   Requirement 7. Usable kitchens and bathrooms.

   
   Section 1. Introduction

   Authority
   Section 804(f)(5)(C) of the Fair Housing Amendments Act of 1988 directs the Secretary of the Department of Housing and Urban Development to provide technical assistance to States, local governments, and other persons in implementing the accessibility requirements of the Fair Housing Act. These guidelines are issued under this statutory authority.

   Purpose
   The purpose of these guidelines is to provide technical guidance on designing dwelling units as required by the Fair Housing Amendments Act of 1988 (Fair Housing Act). These guidelines are not mandatory, nor do they prescribe specific requirements which must be met, and which, if not met, would constitute unlawful discrimination under the Fair Housing Act. Builders and developers may choose to depart from these guidelines and seek alternate ways to demonstrate that they have met the requirements of the Fair Housing Act. These guidelines are intended to provide a safe harbor for compliance with the accessibility requirements of the Fair Housing Act.

   Scope
   These guidelines apply only to the design and construction requirements of 24 CFR 100.205. Compliance with these guidelines 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) and the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157). Accessible design requirements for Section 504 are found at 24 CFR Part 8. Accessible design requirements for the Architectural Barriers Act are found at 24 CFR Part 40.

   Organization of Guidelines
   The design guidelines are incorporated in Section 5 of this document. Each guideline cites the appropriate paragraph of HUD's regulation at 24 CFR 100.205; quotes from the regulation to identify the required design features, and states recommended specifications for each design feature.

   Generally, these guidelines rely on the American National Standards Institute (ANSI) A117.1-1986, American National Standard for Buildings and Facilities--Providing Accessibility and Usability for Physically Handicapped People (ANSI Standard). Where the guidelines rely on sections of the ANSI Standard, the ANSI sections are cited. Only those sections of the ANSI Standard cited in the guidelines are recommended for compliance with 24 CFR 100.205. For those guidelines that differ from the ANSI Standard, recommended specifications are provided. The texts of cited ANSI sections are not reproduced in the guidelines. The complete text of the 1986 version of the ANSI A117.1 Standard may be purchased from the American National Standards Institute, 1430 Broadway, New York, NY 10018.

   Section 2. Definitions
   As used in these guidelines:

   "Accessible", when used with respect to the public and common use areas of a building containing covered multifamily dwellings, means that the public or common use areas of the building can be approached, entered, and used by individuals with physical handicaps. The phrase "readily accessible to and usable by" is synonymous with accessible. A public or common use area that complies with the appropriate requirements of ANSI A117.1-1986, a comparable standard or these guidelines is "accessible" within the meaning of this paragraph.

   "Accessible route" means a continuous unobstructed path connecting accessible elements and spaces in a building or within a site that can be negotiated by a person with a severe disability using a wheelchair, and that is also safe for and usable by people with other disabilities. Interior accessible routes may include corridors, floors, ramps, elevators and lifts. Exterior accessible routes may include parking access aisles, curb ramps, walks, ramps and lifts. A route that complies with the appropriate requirements of ANSI A117.1-1986, a comparable standard, or Section 5, Requirement 1 of these guidelines is an "accessible route". In the circumstances described in Section 5, Requirements 1 and 2, "accessible route" may include access via a vehicular route.

   "Adaptable dwelling units", when used with respect to covered multifamily dwellings, means dwelling units that include the features of adaptable design specified in 24 CFR 100.205(c)(2)-(3).

   "ANSI A117.1-1986" means the 1986 edition of the American National Standard for buildings and facilities providing accessibility and usability for physically handicapped people.

   "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.

   "Bathroom" means a bathroom which includes a water closet (toilet), lavatory (sink), and bathtub or shower. It does not include single-fixture facilities or those with only a water closet and lavatory. It does include a compartmented bathroom. A compartmented bathroom is one in which the fixtures are distributed among interconnected rooms. A compartmented bathroom is considered a single unit and is subject to the Act's requirements for bathrooms.

   "Building" means a structure, facility or portion thereof that contains or serves one or more dwelling units.

   "Building entrance on an accessible route" means an accessible entrance to a building that is connected by an accessible route to public transportation stops, to parking or passenger loading zones, or to public streets or sidewalks, if available. A building entrance that complies with ANSI A117.1-1986 (see Section 5, Requirement 1 of these guidelines) or a comparable standard complies with the requirements of this paragraph.

   "Clear" means unobstructed.

   "Common use areas" means rooms, spaces or elements inside or outside of a building that are made available for the use of residents of a building or the guests thereof. These areas include hallways, lounges, lobbies, laundry rooms, refuse rooms, mail rooms, recreational areas and passageways among and between buildings. See Section 5, Requirement 2 of these guidelines.

   "Controlled substance" means any drug or other substance, or immediate precursor included in the definition in Section 102 of the Controlled Substances Act (21 U.S.C. 802).

   "Covered multifamily dwellings" or "covered multifamily dwellings subject to the Fair Housing Amendments" means 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. Dwelling units within a single structure separated by firewalls do not constitute separate buildings.

   "Dwelling unit" means a single unit of residence for a household of one or more persons. Examples of dwelling units covered by these guidelines include: condominiums; an apartment unit within an apartment building; and other types of dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by occupants of more than one room or portion of the dwelling. Examples of the latter include dormitory rooms and sleeping accommodations in shelters intended for occupancy as a residence for homeless persons.

   "Entrance" means any exterior access point to a building or portion of a building used by residents for the purpose of entering. For purposes of these guidelines, an "entrance" does not include a door to a loading dock or a door used primarily as a service entrance, even if nonhandicapped residents occasionally use that door to enter.

   "Finished grade" means the ground surface of the site after all construction, levelling, grading, and development has been completed.

   "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.

   "Handicap" means, with respect to a person, a physical or mental impairment which substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment. This term does not include current, illegal use of or addiction to a controlled substance. For purposes of these guidelines, an individual shall not be considered to have a handicap solely because that individual is a transvestite. As used in this definition:

   1. "Physical or mental impairment" includes:
      1. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or

      2. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term "physical or mental impairment" includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism. These guidelines are designed to make units accessible or adaptable for people with physical handicaps.

   2. "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

   3. "Has a record of such an impairment" means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

   4. "Is regarded as having an impairment" means:
      1. Has a physical or mental impairment that does not substantially limit one or more major life activities but that is treated by another person as constituting such a limitation;

      2. Has a physical or mental impairment that substantially limits one or more major life activities only as a result of the attitudes of others toward such impairment; or

      3. Has none of the impairments defined in paragraph (a) of this definition but is treated by another person as having such an impairment.

   "Loft" means an intermediate level between the floor and ceiling of any story, located within a room or rooms of a dwelling.

   "Multistory dwelling unit" means a dwelling unit with finished living space located on one floor and the floor or floors immediately above or below it.

   "Public use areas" means interior or exterior rooms or spaces of a building that are made available to the general public. Public use may be provided at a building that is privately or publicly owned.

   "Single-story dwelling unit" means a dwelling unit with all finished living space located on one floor.

   "Site" means a parcel of land bounded by a property line or a designated portion of a public right of way.

   "Slope" means the relative steepness of the land between two points and is calculated as follows: The distance and elevation between the two points (e.g., an entrance and a passenger loading zone) are determined from a topographical map. The difference in elevation is divided by the distance and that fraction is multiplied by 100 to obtain a percentage slope figure. For example, if a principal entrance is ten feet from a passenger loading zone, and the principal entrance is raised one foot higher than the passenger loading zone, then the slope is 1/10 x 100 = 10%.

   "Story" means that portion of a dwelling unit between the upper surface of any floor and the upper surface of the floor next above, or the roof of the unit. Within the context of dwelling units, the terms "story" and "floor" are synonymous.

   "Undisturbed site" means the site before any construction, levelling, grading, or development associated with the current project.

   "Vehicular or pedestrian arrival points" means public or resident parking areas, public transportation stops, passenger loading zones, and public streets or sidewalks.

   "Vehicular route" means a route intended for vehicular traffic, such as a street, driveway or parking lot.

Section 3. Fair Housing Act Design and Construction Requirements
The regulations issued by the Department at 24 CFR 100.205 state:

Section 5. Guidelines
Requirement 1. Accessible building entrance on an accessible route.
Under section 100.205(a), covered multifamily dwellings shall be designed and constructed to have at least one building entrance on an accessible route, unless it is impractical to do so because of terrain or unusual characteristics of the site.

Guideline

1. Building entrance. Each building on a site shall have at least one building entrance on an accessible route unless prohibited by the terrain, as provided in paragraphs (2)(a)(i) or (2)(a)(ii), or unusual characteristics of the site, as provided in paragraph (2)(b). This guideline applies both to a single building on a site and to multiple buildings on a site.
   1. Separate ground floor unit entrances. When a ground floor unit of a building has a separate entrance, each such ground floor unit shall be served by an accessible route, except for any unit where the terrain or unusual characteristics of the site prohibit the provision of an accessible route to the entrance of that unit.

   2. Multiple entrances. Only one entrance is required to be accessible to any one ground floor of a building, except in cases where an individual dwelling unit has a separate exterior entrance, or where the building contains clusters of dwelling units, with each cluster sharing a different exterior entrance. In these cases, more than one entrance may be required to be accessible, as determined by analysis of the site. In every case, the accessible entrance should be on an accessible route to the covered dwelling units it serves.

2. Site impracticality. Covered multifamily dwellings with elevators shall be designed and constructed to provide at least one accessible entrance on an accessible route, regardless of terrain or unusual characteristics of the site. Covered multifamily dwellings without elevators shall be designed and constructed to provide at least one accessible entrance on an accessible route unless terrain or unusual characteristics of the site are such that the following conditions are found to exist:
   1. Site impracticality due to terrain. There are two alternative tests for determining site impracticality due to terrain: the individual building test provided in paragraph (i), or the site analysis test provided in paragraph (ii). These tests may be used as follows.

      A site with a single building having a common entrance for all units may be analyzed only as described in paragraph (i).

      All other sites, including a site with a single building having multiple entrances serving either individual dwelling units or clusters of dwelling units, may be analyzed using the methodology in either paragraph (i) or paragraph (ii). For these sites for which either test is applicable, regardless of which test is selected, at least 20% of the total ground floor units in nonelevator buildings, on any site, must comply with the guidelines.

      1. Individual building test. It is impractical to provide an accessible entrance served by an accessible route when the terrain of the site is such that:
         1. the slopes of the undisturbed site measured between the planned entrance and all vehicular or pedestrian arrival points within 50 feet of the planned entrance exceed 10 percent; and

         2. the slopes of the planned finished grade measured between the entrance and all vehicular or pedestrian arrival points within 50 feet of the planned entrance also exceed 10 percent.

         If there are no vehicular or pedestrian arrival points within 50 feet of the planned entrance, the slope for the purposes of this paragraph (i) will be measured to the closest vehicular or pedestrian arrival point.

         For purposes of these guidelines, vehicular or pedestrian arrival points include public or resident parking areas; public transportation stops; passenger loading zones; and public streets or sidewalks. To determine site impracticality, the slope would be measured at ground level from the point of the planned entrance on a straight line to (i) each vehicular or pedestrian arrival point that is within 50 feet of the planned entrance, or (ii) if there are no vehicular or pedestrian arrival points within that specified area, the vehicular or pedestrian arrival point closest to the planned entrance. In the case of sidewalks, the closest point to the entrance will be where a public sidewalk entering the site intersects with the sidewalk to the entrance. In the case of resident parking areas, the closest point to the planned entrance will be measured from the entry point to the parking area that is located closest to the planned entrance.

      2. Site analysis test. Alternatively, for a site having multiple buildings, or a site with a single building with multiple entrances, impracticality of providing an accessible entrance served by an accessible route can be established by the following steps:
         1. The percentage of the total buildable area of the undisturbed site with a natural grade less than 10% slope shall be calculated. The analysis of the existing slope (before grading) shall be done on a topographic survey with two foot (2') contour intervals with slope determination made between each successive interval. The accuracy of the slope analysis shall be certified by a professional licensed engineer, landscape architect, architect or surveyor.

         2. To determine the practicality of providing accessibility to planned multifamily dwellings based on the topography of the existing natural terrain, the minimum percentage of ground floor units to be made accessible should equal the percentage of the total buildable area (not including floodplains, wetlands, or other restricted use areas) of the undisturbed site that has an existing natural grade of less than 10% slope.

         3. In addition to the percentage established in paragraph (B), all ground floor units in a building, or ground floor units served by a particular entrance, shall be made accessible if the entrance to the units is on an accessible route, defined as a walkway with a slope between the planned entrance and a pedestrian or vehicular arrival point that is no greater than 8.33%

   2. Site impracticality due to unusual characteristics. Unusual characteristics include sites located in a federally-designated floodplain or coastal high-hazard area and sites subject to other similar requirements of law or code that the lowest floor or the lowest structural member of the lowest floor must be raised to a specified level at or above the base flood elevation. An accessible route to a building entrance is impractical due to unusual characteristics of the site when:
      1. the unusual site characteristics result in a difference in finished grade elevation exceeding 30 inches and 10 percent measured between an entrance and all vehicular or pedestrian arrival points within 50 feet of the planned entrance; or

      2. if there are no vehicular or pedestrian arrival points within 50 feet of the planned entrance, the unusual characteristics result in a difference in finished grade elevation exceeding 30 inches and 10 percent measured between an entrance and the closest vehicular or pedestrian arrival point.

3. Exceptions to site impracticality . Regardless of site considerations described in paragraphs (1) and (2), an accessible entrance on an accessible route is practical when:
   1. There is an elevator connecting the parking area with the dwelling units on a ground floor. (In this case, those dwelling units on the ground floor served by an elevator, and at least one of each type of public and common use areas, would be subject to these guidelines.) However:
      1. Where a building elevator is provided only as a means of creating an accessible route to dwelling units on a ground floor, the building is not considered an elevator building for purposes of these guidelines; hence, only the ground floor dwelling units would be covered.

      2. If the building elevator is provided as a means of access to dwelling units other than dwelling units on a ground floor, then the building is an elevator building which is a covered multifamily dwelling, and the elevator in that building must provide accessibility to all dwelling units in the building, regardless of the slope of the natural terrain; or

   2. An elevated walkway is planned between a building entrance and a vehicular or pedestrian arrival point and the planned walkway has a slope no greater than 10 percent.

4. Accessible entrance. An entrance that complies with ANSI 4.14 meets section 100.205(a).

5. Accessible route. An accessible route that complies with ANSI 4.3 would meet section 100.205(a). If the slope of the finished grade between covered multifamily dwellings and a public or common use facility (including parking) exceeds 8.33%, or where other physical barriers (natural or manmade) or legal restrictions, all of which are outside the control of the owner, prevent the installation of an accessible pedestrian route, an acceptable alternative is to provide access via a vehicular route, so long as necessary site provisions such as parking spaces and curb ramps are provided at the public or common use facility.

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