Virginia Real Estate, Land Use & Construction Law : Virginia Construction Lawyers & Attorneys : Bean Kinney & Korman Law Firm : VA Real Estate, Land Use & Zoning

The U.S. Department of Justice (DOJ) recently published new regulations in the Federal Register on September 15, with the final rules taking effect March 15, 2011. Compliance with the 2010 Standards for Accessible Design is permitted as of September 15, 2010, but not required until March 15, 2012.   These new regulations relate to the implementation of Title II and Title III of the Americans With Disabilities Act and apply to public entities as well as a number of types of facilities owned/operated by private entities relating to public accommodations in private facilities. DOJ is issuing these rules in order to adopt "enforceable" accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board.

Title III prohibits discrimination on the basis of disability in "places of public accommodation" (described by DOJ as businesses that are generally open to the public and
that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors' offices) and requires newly constructed or
altered commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings) to comply with the ADA Standards.  The new rules include a general "safe harbor" under which elements in these types of facilities that were built or altered in compliance with the 1991 Standards would not be required to be brought into compliance with the 2010 Standards until the elements were subject to a planned alteration.  A similar "safe harbor" also applies to elements associated with the "path of travel" to an altered area.  The official fact sheet outlining the changes to Title II can be found here and the fact sheet outlining the changes to Title III can be found here.

So what do you need to know about these new regulations?  Well, first of all, these new regulations should help simplify things because they were intended to be in congruity with the International Building Code/most uniform statewide building codes, to reduce conflicts per the old requirements, where you had various federal and state requirements that were different.  Also, remember that the "safe harbor" provisions should be taken into account when scoping new construction or upgrades at facilities.  Additionally, because compliance with the 2010 Standards for Accessible Design is permitted as of September 15, 2010, but not required until March 15, 2012, it looks like there will be a window where you will have a choice of which standards to implement, which should also be kept track of.  And, of course if you have any special excpetions going through the public processes right now, pay attention to what you agree to.

Here is the link to the Federal Register provisions for Title II official text changes and here is the link to the Federal Register provisions for the Title III text changes.

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A recent decision from the US Court of Appeals for the Fourth Circuit should be sending cold chills up and down developers' spines regarding complaints under the Americans with Disabilities Act (ADA) and Fair Housing Act (FHA).  The case, Equal Rights Center and Archstone v. Niles Bolton Associates, basically ruled that a developer was not entitled to recover its claims against the architect for a failure of a multi-family project to meet ADA and FHA requirements.

ADA and FHA claims have a long history at this point, particularly since the 1991 passage of the ADA.  After a huge wave of litigation, often spawned in the arena design and construction area, ADA claims seemed to die down for a while.  We have heard and seen ADA and FHA complaints have a huge spike over the last several years, in particular with large scale multi-family developers.  (The anecdotal word was that testers and advocacy groups were proceeding alphabetically, so those in Z's may not have heard this yet).

Owner/developers understandably attempt to lean on their design consultants for advice and direction in this arena.  Many include broad form requirements for certifications of compliance from their design professionals accompanied by equally broad indemnification provisions if something goes wrong.  In the Archstone case, Archstone faced a number of complaints on 71 buildings, including 15 buildings designed by Niles Bolton.  Archstone settled those issues and then sought to recover expenses associated with the consent decree from its architect.  Archstone's claims included express indemnity, implied indemnity, breach of contract, and negligence.

During three years of litigation and discovery, Archstone resisted disclosing how it allocated the consent decree repairs and expenses across the various properties.  Archstone claimed it had no such duty and was entitled to recover all expenses for the 15 Niles Bolton buildings from teh architect based on its indemnification style claims.  The court agreed and granted Archstone a protective order from having to disclose that information.

That resistance may have been a big mistake.  The trial court held, and the appeals court ultimately agreed, that permitting pure indemnification under any theory was "antithetical to the purposes of the FHA and ADA".  According to the court, allowing indemnification would permit Archstone to shift its entire responsibility for federal violations and undermine the preventative aspects of ADA and FHA.  As the court stated:

Allowing an owner to completely insulate itself from liability for an ADA and FHA violation through contract diminishes its incentive to ensure compliance with discrimination laws.  If a developer of apartment housing, who concededly has a non-delegable duty to comply with the ADA and FHA, can be indemnified under state law for its ADA and FHA violations, then the developer will not be accountable for discriminatory practices in building apartment housing. 

As such, federal law preempted not only the pure indemnification claims, but also even the state law breach of contract and negligence claims of Archstone because it sought to recovery all costs and expenses.

This may be a case of Archstone going to far by asking for the whole nut.  It is tempting to do so at least in the alternative, but by asking for only 100% of the claim and not including a request for damages directly caused by proven negligence, Archstone may have unwittingly taken a big risk.  That risk appears compounded by its resistance to producing allocation information along with the likely credibility gap that disclosure may be demonstrated.

We can take a few lessons away moving forward:

1. You still want to include certification and indemnification provisions in the contracts if you are the owner/developer; consider tying the indemnification clauses to damages caused by the negligence of the designer.
2. Be wary of asking for too much, it can blow up in your face.
3. Be wary of resisting discovery, such a position can ultimately box your case into a position of unexpected weakness.  Far better to just product all the documents and fight the case in the well on all the facts than to try and get cute and end up getting burned.
4. In ADA and FHA cases, include claims that are tied to specifically demonstrated negligence as opposed to a straight pass-through of all claims.
5. Understand that if you are resolving and negotiating claims with one set of claimants, passing through claims to third parties may prove tougher than you think.

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We are very pleased to have our inaugural guest post by John Salmen, AIA.  A licensed architect, John is President of Universal Designers and Consultants, Inc.. John has specialized in barrier free and universal design for 30 years and is a recognized expert on US accessibility regulations and a leader in the field of Universal Design.   We can think of no one better to start the accessibility discussion on our blog, and we also believe John makes an interesting, persuasive and important connection between economic, environmental and social sustainability that merits significant attention.

Inevitably, this question must be raised. As public awareness of green design swells to a tidal wave, many Students of Universal Design (UD) think we see the next wave approaching – and its name is Universal Design. But how do these waves relate to each other? Are they random swells? Or caused by undersea movement of the earth’s crust?

Valerie Fletcher, Executive Director of the Institute for Human Centered Design, and Elaine Ostroff, Founding Director along with Eric Mikiten, AIA of the Bay Area COTE, believe that they are both connected to the earth shaking movement of Sustainability. Eric presented his overview in detail at the AIA 2009 convention. The trefoil logo, developed by the Department of Public Works of Queensland, Australia for its Smart House program (www.build.qld.gov.au/smart_housing/elements/index.asp), communicated how these three universal design leaders visualize the “ three–legged stool of sustainable design.” The graphic above illustrates how universal design is a basic element of sustainable design, as it relates to resource efficiency and economic empowerment under the umbrella of environmental, economic and social sustainability.
Environmental sustainability relates to the green movement and natural resource conservation and efficiency. Economic sustainability relates to concepts of life cycle costing, equity and fair trade value of products and services. Social sustainability relates to systems that support people by creating safe, secure and independent communities.

When compared to financial and natural resources, human ability is arguably the most precious resource of all. Human ability is enabled, supported and encouraged by a universally designed environment that gives everyone the opportunity to participate with a minimum of outside support. Just as we must conserve our natural resources, we must also conserve our human resources. It is a waste of human potential to create environments that demand dependence when a simple change in the design of the path, space or element could allow un-assisted use. Like “green design”, universal design must be an integral part of design programming and the imaginative design process. It cannot be left as an add-on in a minimal compliance mode.

The relationship between two people who are locked in the care giver/receiver dance, while frequently a loving and enriching experience, is difficult, uncomfortable, and too often destructive of human dignity. Independence is best and can be extended with universal design. The obvious example is aging in place, which is facilitated by universally designed homes and communities.

As we struggle to make the most of limited resources, the value of universal design as a tool to conserve human resources will become increasingly apparent, and its relationship to the broader goal of sustainability will become clear.

Editor's post script: In response to Chris Cheatham's fair question of what is "Universal Design", here is a definition from John Salmen's website:

Ron Mace, one of the original universal design movement leaders, defined universal design as: "Universal Design is the design of products and environments to be useable by all people, to the greatest extent possible, without the need for adaptation or specialized design.

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