Daily Development for Friday, August 27, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu
FAIR HOUSING; DISABILITIES; “COMMON USE:” A stair landing shared by two
apartment entrances is a “common use area” and consequently must be handicapped
accessible under the Fair Housing Act, even though each apartment has an
independent handicapped accessible entrance at another location.
United States v. Rose, 2004 Fed. App. 0279P (6th Cir. 3/10/04)
This suit was brought by HUD to enjoin the completion of construction of an
apartment complex because the design of the apartments did not provide access to
handicapped persons in conformance with the requirements of the Fair Housing
Act. At issue was the meaning of the Fair Housing Act, Section 42 U.S.C. Sec.
3604(f)(3)(C)(i), which makes a violation of the Act:
“in connection with the design and construction of covered multifamily dwellings
. . . a failure to design and construct those dwelling in such a manner that -
-(I) the public use and common use portions of such dwellings are readily
accessible to and usable by handicapped persons;”
This was a case of first impression in the Sixth Circuit. It is unclear whether
there is authority construing the statute elsewhere. None was cited in the
opinion, and the lawyers and parties involved suggest that this was a major test
case for the issue. Unfortunately, in the end, the court elected to duck the
most significant issue in contention, and resolved the matter on a secondary
issue. Both issues are reasonably important, however, and the case is worthy of
note.
The apartment units in question were at a level lower than the parking lot, and
stairs ran from the parking lot to landings in front of entrances to the
apartment units. The landings each provided access to two units. Each of the
apartments had a separate entrance through a patio door that was accessible to
handicapped persons - apparently because stairs were not necessary to get to
them. But the distance to travel to get from the parking lot to the patio doors
was greater than the distance to the doors adjacent to the landings.
The government argued that the landings were required to be handicapped
accessible for two reasons. First, it contended that these landings were
adjacent to the main entrances to the units, accessed by both residents and
guests, and that therefore they constituted “common areas.” Second, it contended
that in any event, because these landings were shared by two units, they
necessarily were “common use portion” within the meaning of the statute.
The first claim by the government was obviously the most important one, as it
would require an inquiry in every case into what constitutes the “main entrance”
of a residence and also that this entrance be handicapped accessible, even if
there are other ways into the apartment that satisfy the statute. The developers
pointed out that the statute nowhere refers to a “main entrance” requirement or
concept. Instead, they noted, the statute states simply, elsewhere, that there
be an “accessible route into and through the dwelling;” 42 U.S.C. Sec.
3604(f)(3)(C)(iii)(I). They argued that an interpretation of “common use
portion” to mean “main entrance” would render this section superfluous.
The court did not discuss any statutory interpretation arguments the government
mustered in support of its contention that the statute requires that main
entrances be viewed as “common use portions.” The fact that it dwelt at some
length on the developer’s response to the government contention, and does not
dispute this response, suggests that it agreed with the developer. But
nevertheless it expressly refused to rule on this point, since it concluded that
the government should prevail on its second argument - that the shared landings
indeed were “common use” elements of the structure, and were required to be
handicapped accessible for that reason alone.
“Our ruling is narrow; we simply hold in this case that because the two
apartments share the stair landing, the stair landing qualifies as a “common
area” that must be accessible. We express no opinion on what the FHA would
require if the stairs only led to one apartment unit entrance and decline to
delve into the parties’ “primary entrance” arguments because we find them
unnecessary for the resolution of this case.”
The court also discussed whether an injunction should issue. It concluded that
where the statute provided for injunctive relief, and the liklihood of success
on the merits was high, the government did not have a burden to show separately
“irreparable injury.” High liklihood that the statute will be violated if the
injunction is not issued is sufficient.
Comment 1: The editor suspects that the developer brought in heavy artillery in
this case because of the danger that HUD would be able to push through its
interpretation that “main entrances” must be handicapped accessible even if
other entrances provide access for handicapped persons. Clearly, the government
couldn’t push that interpretation through here, but it likely will try again.
The housing development needs to be aware of HUD’s petition here and, frankly,
to beat it down wherever it appears. Clearly, at least insofar as the arguments
discussed here indicate, the government should lose on this one.
Comment 2: On the second issue, the question of whether a shared landing is a
common area and within the notion of “common use portion,” the editor believes
that the government wins on this one, and the remedy is legislative if the
developers can’t live with it.
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