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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