FAIR HOUSING –WHAT’S YOUR SAFE HARBOR?

by Theresa D’Andrea, Senior Accessibility Consultant

ompliance with the accessible design and construction requirements of the Fair Housing Act (FHA), a federal civil rights law, has significantly improved since the early 1990s when the regulations were promulgated. Unfortunately, a quick search of recent news articles will reveal that noncompliance with basic FHA requirements continues to be a problem in newly constructed multifamily projects nationwide. Owners, developers, architects, and others are still cited for noncompliance with the FHA’s seven design and construction requirements even though it has been more than 30 years since those requirements went into effect.

Why Select a Safe Harbor?

Based on our experience, one of the contributing factors in continued noncompliance is the common misconception that following the accessibility requirements of a building code will result in compliance with the FHA. It is important to note that if the accessibility requirements of one of the HUD-approved safe harbors are not incorporated into the design of a multifamily development, and the project complies only with the accessibility requirements of a building code, the risk of noncompliance exists.

CThroughout the 1990s and early 2000s, many building codes fell far short of FHA compliance. For example, many developers relied on compliance with the accessibility requirements of the local code believing that code and FHA requirements were one in the same. Unfortunately, this resulted in widespread noncompliance. To ensure compliance with the accessible design and construction requirements of the FHA and the local code, be sure to comply with both. To avoid the risk of noncompliance, select one of the HUD-approved ‘safe harbors’ and apply its requirements to the entire project. When weighing the requirements of the local code against those of the FHA, follow the most stringent criteria. By implementing this best practice, industry professionals will achieve compliance with the FHA.

What are the Safe Harbors?

Before March 8, 2021, there were ten HUD-approved safe harbors for FHA compliance:

1. HUD Fair Housing Act Accessibility Guidelines published on March 6, 1991 and the Supplemental Notice to Fair Housing Accessibility Guidelines: Questions and Answers about the Guidelines, published on June 28, 1994;

2. HUD Fair Housing Act Design Manual;

3. ANSI A117.1 (1986), used with the Fair Housing Act, HUD’s regulations, and the Guidelines;

4. CABO/ANSI A117.1 (1992), used with the Fair Housing Act, HUD’s regulations, and the Guidelines;

5. ICC/ANSI A117.1 (1998), used with the Fair Housing Act, HUD’s regulations, and the Guidelines;

6. Code Requirements for Housing Accessibility 2000 (CRHA);

7. International Building Code 2000 as amended by the 2001 Supplement to the International Codes;

8. International Building Code 2003, on the condition that the ICC publish and distribute a statement that indicates that “the ICC interprets Section 1104.1, and specifically the exception to Section1104.1, to be read together with Section 1107.4, and that the Code requires an accessible pedestrian route from site arrival points to accessible building entrances, unless site impracticality applies. Exception 1 to Section 1107.4 is not applicable to site arrival points for any Type B dwelling units because site impracticality is addressed under Section 1107.7”

9. ICC/ANSI A117.1 (2003), used with the Fair Housing Act, HUD’s regulations, and the Guidelines; and,

10. The 2006 International Building Code (loose leaf format only)

In the December 8, 2020 edition of the Federal Register, HUD published a final rule adopting additional safe harbors that can be used to demonstrate compliance with the design and construction requirements of the FHA. This is a long-awaited update and an important step toward bringing building code and FHA requirements together for designers. As of March 8, 2021, the following additional safe harbors have been approved by HUD:

11. ICC A117.1-2009

12. The 2009 International Building Code

13. The 2012 International Building Code

14. The 2015 International Building Code

15. The 2018 International Building Code

The New Safe Harbors

The final rule published in the December 8, 2020 edition of the Federal Register states that HUD has reviewed the updated editions of the IBC and found that it “found that the accessibility provision of these IBC editions [2009, 2012, 2015, and 2018] are consistent with the requirements in the Act, HUD’s regulations, and the Guidelines.” HUD also clarified that it “… did not find any provision [in the additional safe harbors] that it believes provides less accessibility than what is required in the Act, the regulations, and the Guidelines,” and that “to ensure compliance with the Act, covered entities must select one safe harbor; once a safe harbor document has been selected, the building in question must comply with all the provisions in that document that address the Fair Housing Act design and construction requirements to ensure the full benefit of the safe harbor.”

HUD’s clarifications implied that where provisions of a safe harbor exceed the design and construction requirements of the Act, they do not need to be met as a matter of FHA compliance; they need to be met as a matter of building code compliance. Many Type A unit criteria included in the ICC

A117.1 technical standard exceed baseline FHA requirements. For example, a 30-inch wide work surface is required in Type A units, but not required by the FHA. In this case, the lack of the 30-inch wide work surface would violate the code, but not the FHA. The only way to understand provisions of the safe harbors that exceed the Act is to read each in the context of the requirements of the Act itself, HUD’s implementing regulations, and the Fair Housing Act Accessibility Guidelines. Only when baseline FHA requirements are understood, then safe harbor requirements that exceed baseline FHA requirements will be brought to light.

Section 101 of the ICC A117.1 standard states that Type B criteria are designed to be consistent with the dwelling unit requirements of the FHA. Baseline FHA requirements do not stipulate that maneuvering clearance is required on the dwelling unit side of the unit entry door, but the interior side of a Type B dwelling unit entry door is subject to maneuvering clearance requirements under ICC A117.1 2009. Despite Section 101 and its clarification that Type B units are designed to align with FHA requirements, maneuvering clearance on the interior side of the dwelling unit entry door exceeds baseline FHA requirements. Although compliance with Type B requirements at the entry door is required as a matter of demonstrating compliance with the code where Type B units are required, compliance to the same extent is not required by the FHA.

Selecting a Safe Harbor

Despite what the recently approved safe harbors allow, HUD continues to evaluate properties to the baseline requirements of the FHA Guidelines, which requires exactly 18 inches between the toilet centerline and the side wall. However, if a designer can demonstrate compliance with one of the recently approved safe harbors, which permits a range of between 16 and 18 inches versus 18 inches exactly, then compliance is achieved.

The best advice is to comply with the selected safe harbor in its entirety despite there being subtle differences between each. In the end, HUD will identify violations of the Act by demonstrating noncompliance with the Fair Housing Accessibility Guidelines. It is up to the designer to refute allegations of noncompliance by demonstrating full compliance with any of the currently HUD-approved safe harbors. If you can do that, then you’re golden! l in complex scoping and technical requirements of federal, state, and local laws and codes governing accessibility compliance. She conducts plan reviews and field inspections and provides training and technical support to project teams throughout design and construction.