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Box 66738 Washington, DC 20035-6738 APR 8 1996 DJ 204-012-00074 Ms. Rhonda L. Daniels Senior Counsel National Association of Home Builders 1201 15th Street, N.W. Washington, D.C. 20005-2800 Dear Ms. Daniels: I am responding to your inquiry of January 19, 1995, on behalf of the National Association of Home Builders, regarding the application of the Americans with Disabilities Act of 1990 (ADA) to the home building industry. We apologize for the delay in responding to your letter. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA's requirements. It does not, however, constitute a legal interpretation or advice, and it is not binding on the Department. Your letter notes that questions have arisen about the application of the ADA to housing "as a result of the proposed accessibility guidelines published by the Architectural and Transportation Barriers Compliance Board . . . . " Therefore, you have requested clarification of the ADA's requirements as they apply to residential construction. Specifically, you have asked the Department to declare: 1) that privately owned residential housing is not subject to title II of the ADA; 2) that only buildings for which a State or local government holds the title are subject to title II; and, 3) that sidewalks in residential areas are not subject to the cross slope requirements contained in the Interim Final ADA Accessibility Guidelines.
Records; Chrono; Wodatch; Savage; Blizard; Pecht; FOIA n:\udd\blizard\drsltrs\daniles\sc. young-parran 01-04196 -2Title II of the ADA, 42 U.S.C. S 12132, provides that [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. departments, agencies, or instrumentalities of State and local governments are public entities subject to title II. Under these definitions, it is clear that only public entities and individuals acting on behalf of public entities have an obligation to comply with title II. Residential properties that are owned and operated by private entities as purely private residential properties are not within the scope of title II. However, when a State or local government establishes a program that involves providing housing to its residents, that public entity has the obligation to ensure that its program is operated in a non-discriminatory manner whether the program is provided directly by the public entity or through "contractual, licensing, or other arrangements." Because the ADA recognizes that public entities employ many different methods of operating their programs, the Department's regulations do not attempt to limit the types of arrangements that public entities may utilize to ensure effective delivery of programs or services. The regulation merely requires public entities to ensure that when public services or programs are provided through other entities those services or programs meet the same standard of accessibility that would be required if the public entity provided the service directly. 28 C.F.R. S 35.130. In cases where funding is provided to a private entity to facilitate the operation of a State or local program, such accessibility is required. In addition, it should be noted that even if title II would not require a specific facility to be made accessible, a public entity may have the authority under State or local law to require the facility to be accessible.
Your second assertion, that only buildings to which a public entity holds title should be subject to the ADA accessibility requirements is clearly inconsistent with title II and with the title II implementing regulation. Because title II prohibits discrimination in any program, service, or activity of a public entity, the title II regulation (28 CFR S 35.151(a)) requires [E]ach facility or part of a facility constructed by, on behalf of, or for the use of a public entity . . . ." (emphasis added) to be designed and constructed so that it is ". . . readily accessible to and useable by individuals with disabilities. 01-04197 -3A similar requirement applies to alterations to existing facilities that are commenced after January 26, 1992. 28 CFR S 35.151(b). Buildings and facilities covered by title II may be designed and constructed in accordance with either the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Standards for Accessible Design (ADA Standards). 28 CFR S 35.151(c). These requirements will remain in effect until this Department publishes a final regulation adopting new accessibility standards for title II entities. Finally, because sidewalks in residential areas are "facilities" within the meaning of the ADA, residential sidewalks that are constructed with the expectation that they will be turned over to the local government are required to be accessible to people with disabilities. As you know, the Access Board has published interim final guidelines that contain technical requirements applicable to public sidewalks. These requirements are the subject of a Notice of Proposed Rulemaking published by the Department, but they are not yet included in the Department's regulation. Therefore, compliance with the requirements of section 14 of the Access Board's Interim Final Rule is not required. Until this Department publishes a final regulation that establishes specific requirements for accessible public sidewalks, public entities may elect to meet their obligation to provide accessible sidewalks by using the technical provisions applicable to accessible exterior routes under the ADA Standards or UFAS, or they may follow any other accessibility standard in effect in their jurisdiction. In addition, public entities must provide curb ramps or other sloped areas at
intersections between the pedestrian walkway and streets, roads, or highways. 28 CFR SS 35.151 (c) and (e). I hope that this information assists you to understand the responsibility of public entities to apply title II in the operation of their programs. Please be advised that to the extent that your letter raises issues with respect to the technical and scoping requirements for residential properties or public rights of way contained in the notice of proposed rulemaking that was published by the Department in June 1994, we will consider your comments in our review of the responses to that notice. Both the Department and the Access Board are now completing the review of the proposed rule and making appropriate revisions. Your comments may be further addressed in the final publication of the rule. Sincerely, John L. Wodatch Chief Disability Rights Section 01-04198 National Association of Home Builders 1201 15th Street, N.W., Washington, D.C. 20005-2800 (202) 822-0200 (800) 368-5242 Fax (202) 822-0559 January 19, 1995 Ms. Merrily Friedlander Acting Section Chief, Coordination and Review Civil Rights Division U.S. Department of Justice Box 6618 Washington, D.C. 20035-6118 Dear Ms. Friedlander: On behalf of the National Association of Home Builders, I am writing to request clarification about the applicability of Title II of the Americans with Disabilities Act (ADA) to residential housing. Some questions have arisen about the applicability of Title II to the residential home building industry as a result of the proposed accessibility guidelines published by the Architectural and Transportation Barriers Compliance Board (ATBCB) (57 Fed. Reg. 60612, December 21, 1992, and 59 Fed. Reg. 31676, June 20, 1994).
We respectfully request your office to clarify that privately owned and operated residential housing is not subject to Title II. We are concerned that in the absence of such clarification, there will be continuing confusion among builders, state and local regulatory officials, building code officials, as well as the users of these facilities about the applicability of the Title II guidelines to a particular project. This letter sets forth two issues arising from the proposed guidelines which need to be addressed by the Department. Only Buildings Owned and Operated by State of Local Governments Should be Subject to Title II There appears to be widespread confusion regarding the applicablity of Title II to residential buildings which are privately owned and operated, but which receive some form of subsidy from a state or local government entity. The proposed accessibility guidelines issued by the ATBCB on December 21, 1992 stated that the guidelines applied to "...single family and multifamily dwelling unit facilities constructed or altered by, for, or on behalf of a State or local government entity." (57 Fed. Reg. 60660). We have been apprised that certain state housing agencies have taken the position that all residential projects that receive a federal or state subsidy qualify as facilities constructed "on behalf of" a state or local government entity. Various local 01-04199 Ms. Merrily Friedlander January 19, 1995 Page 2 officials have been interpreting this provision to mean that any building that receives any type of government loan, guarantee, grant or any other financial assistance qualifiesas a "state or local government facility." We cannot support such a reading of ADA. The legislative history of the ADA indicates that Congress was concerned that newly constructed public buildings, i.e, buildings owned by governmental entities, be accessible to the disabled. To suggest that the law extends to buildings owned by private concerns merely because the building may have received some type of financial assistance from a state or local government would expand coverage of the law to an extent not contemplated by Congress. For example, under this reasoning, housing built with funds made available under the HOME Investment Partnership Program would be subject to the ADA. Similarly, housing which receives funding from a community block grant program, or which is eligible for a low interest rate mortgage under a state government housing program would be subject to the ADA under this reasoning. There is nothing in the legislative history of the ADA to suggest that Congress intended that the receipt of some form of governmental subsidy effectively changes a privately owned building into a public building. In fact, a letter from the Congressional Budget Office (CBO) to the Chairman of the House Committee on Education and Labor, supports the position that the
only buildings that Congress intended to be covered by Title II are newly constructed state owned or local government-owned buildings. In estimating the costs of Title II, the CBO concluded that there would be little or no costs to state governments, since all states currently mandate accessibility in newly constructed state- owned public buildings. CBO recognized however, that because municipalities may not have such accessibility requirements, they would probably incur additional costs to make newly constructed, locally-owned public buildings accessible. (House Report, 101-485 p. 145). This analysis demonstrates that there was no intent to expand the reach of Title II to privately owned buildings which may receive some form of government subsidy. We submit that rather than focusing on whether a building receives some form of government subsidy, the focus should be on whether the building is owned by a public or private entity. There is no question that buildings which are publicly owned are subject to Title II. However, if a building is owned by a private individual or entity, as evidenced by the name on the title to the property, then that building should not be subject to Title II. It is the ownership of the building, not whether the building receives some form of government subsidy, that should determine whether it is subject to Title II accessibility requirements. We urge the Department to clarify that if title to a building is held in the name of a private individual or entity, the building is not subject to Title II, regardless of whether the building receives any form of government subsidy. 01-04200 Ms. Merrily Friedlander January 19, 1995 Page 3 Residential Development Should Not Be Subject to the Sidewalk Cross Slope Requirement A second issue has arisen under Title II concerning applicability of the sidewalk cross slope requirement to residential development. ATBCB's proposed guidelines require that every private right-of-way dedicated to a public jurisdiction must meet a 1:50 cross slope requirement. Section 14.2.1 of the Guidelines, June 20, 1994). It is common practice for private residential developers to develop the entire right-of-way, including sidewalks, and dedicate them to the local jurisdiction. Thus, every residential subdivision could be subject to this requirement. Because of the adverse impact this requirement could have on residential development, we request the Justice Department reexamine this issue. We have attached a letter to the ATBCB from the Southern Nevada Home Builders detailing the adverse impact to residential development that could result from the current proposal. As set forth in that letter, in order to comply with the 1:50 cross slope requirement, design remedies such as providing additional maneuvering space, will be necessary. There will be serious impacts to residential development if a sidewalk must be offset around a driveway apron to maintain an acceptable cross slope. In addition, offset sidewalks impact building setbacks. Local governments require a minimum setback from the back of the sidewalk. If the sidewalk encroaches on the building, the building must be moved further back from the street. The
ultimate result of the cross slope requirement is more expensive housing, as density will be reduced as a result of increased setbacks. We urge the Justice Department to clarify in the final rule implementing Title II that residential development is not subject to the cross slope requirement. We thank you for this opportunity to present our concerns. Sincerely, Rhonda L. Daniels Senior Counsel Attachment 01-04201 Southern Nevada Home Builders Association December 12, 1994 Ms. Elizabeth A. Stewart Office of the General Counsel Architectural and Transportation Barriers Compliance Board 1331 F Street NW., suite 1000 Washington, D.C. 2004-1111 Re: Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities: State and Local Government Facilities (Fed. Regis. Vol.59 NO. 117) Dear Ms. Stewart, The Southern Nevada Home Builders Association represents over seven hundred developers, subcontractors, and suppliers throughout southern Nevada. In reviewing the Interim Final Rule, our Association is extremely concerned with the proposed requirement for a 1:50 cross slope where public sidewalks intersect driveways. It was our original understanding that the Accessibility Guidelines for Buildings and Facilities: State and Local Government Facilities (Guidelines) would not apply to private residential development. However, Section A14.1 (Public Rights-of-Way) states, Jurisdictions that may later accept pedestrian facilities constructed in rights-of-way developed by private entities should ensure through the permitting process that such elements will also meet the requirements of this section. As such, is it the intent of the Guidelines that every private right-of-way development dedicated to a government jurisdiction must meet the 1:50 cross slope requirement, including the intersection of a sidewalk with the private
driveway of a single-family home? It is common practice for residential development, including private subdivisions, to develop the entire right-of-way, including sidewalks, and dedicate them to local governments for maintenance. As a result, it would seem that the proposed Guidelines would impact nearly every residential development in the United States, including private subdivisions. Ms. Elizabeth A. Stewart Office of the General Council December 12, 1994 Page 2 In order to comply with the 1:50 cross slope requirement, design remedies, such as providing additional maneuvering space, will be necessary. Forcing sidewalks to be offset around driveway aprons to maintain an acceptable cross slope will result in a host of impacts on residential development. Many of the future impacts cannot reasonably be anticipated at this time. One of the greatest factors influencing the impact of the proposed Guidelines will be existing regulations in local jurisdictions. Yet another critical issue will be the natural topography of the region to be developed. The immediate impact to southern Nevada will be increased building setbacks, loss of private property, and expensive engineering "solutions." The design and construction of right-of-way developments is dictated by a myriad of overlapping regulations. Building elevations may be dictated by regional flood control agencies, while building setbacks are determined by local planning boards, and sidewalks and street specifications are mandated by public works departments. The proposed Guidelines will supersede some local requirements, but will have no effect on existing regulations that address building elevations, drainage, and other related issues. The Guidelines suggest offset sidewalks (Fig. A9(a), (b), page A26) as an acceptable design solution to the 1:50 cross slope requirement. Not only does this option result in the loss of private property for sidewalk offsets, but would impact building setbacks as well. Local governments require a minimum setback from the back of sidewalk. Whenever the sidewalk encroaches on the building, the building must be placed further from the street to satisfy setback requirements. We suggest that the scope of these guidelines with respect to the acceptable cross slope for driveways be re-examined. Since nearly all residential developers eventually dedicate right-of-way developments to local jurisdictions, the impact on residential housing, particularly the home buyer, must be taken into consideration. As these Guidelines stand, housing density will be reduced as a result of increased setbacks and a loss of private property for sidewalk offsets. In addition, the increased materials, design, and construction costs will also be passed on to the home buyers. The cumulative result of the 1:50 cross slope requirement will be to significantly reduce a developers ability to provide affordable housing to the general public. This increased expense will result
in potential home buyers not being able to afford the increased housing cost. 01-04203 Ms. Elizabeth A. Stewart Office of the General Council December 12, 1994 Page 3 In conclusion, we recommend that the Guidelines be modified to allow for a limited exception to the 1:50 cross-slope requirement for public sidewalks, that being the apron intersecting a private single-family driveway, so long as each side of the apron is beveled where it contacts the sidewalk. If this is unacceptable, then we recommend that the implementation date of the Guidelines be postponed until the issues mentioned above can be addressed. We appreciate this opportunity to express our concerns. Our office would be more than happy to discuss this matter with you in greater detail. Sincerely, Jesse Wells Government Affairs Specialist c.c. Rhonda Daniel's, National Association of Home Builders Bob Raymer, California Building Industry Association Mike Beasley, Colorado Association of Home Builders Alan Lurie, Southern Arizona Home Builders Association Gary Johnson, Clark County Regional Transportation Committee 01-04204
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