NAHB Aids Builder in Fair Housing Act Case

Filed in Codes and Standards, Legal, Multifamily by on July 17, 2014 1 Comment

WheelchairAn NAHB member who made every effort to ensure that his condominium community complied with the Fair Housing Act Accessibility Guidelines was nonetheless sued by the federal government.

The NAHB Legal Action Committee has his back – and because the outcome of the case could affect future Fair Housing Act decisions, has committed $50,000 and the additional promise of a “friend of the court” brief to assist the legal effort.

Noble Homes and Guardian Property Management in Hartville, Ohio, companies owned by Dean Windham, a member of the BIA of Stark County, began work on a community of four-unit buildings in 2004.

The Fair Housing Act Accessibility Guidelines require the primary entrance to first-floor multifamily residences — described in the act as the “entrance most likely to be used,” to be wheelchair accessible. Windham’s architect provided that access through each owner’s parking garage.

While the 2004 plan submittals were given building permits and 13 structures were built, a new county plans examiner in 2006 had a different interpretation of the guidelines, and ruled that the plans did not comply.

Windham then consulted an architect who had served as a plans examiner in a nearby county and with Stark County officials who affirmed that the plans upheld the guidelines. He also consulted a specialty firm, Motion Mobility & Design, to make sure that every unit could be easily adapted to any specific mobility need.

Finally, Windham presented the company’s plan to comply with the guidelines to the Ohio Board of Building Appeals, which unanimously voted in favor of the plan to make the units accessible.

In 2011, a fair housing advocacy group from another county filed a complaint with the Department of Housing and Urban Development (HUD), alleging various violations, including that the wheelchair access through the garage was not in compliance with federal accessibility guidelines.

Windham cooperated fully with the investigators but could not meet HUD’s demands because he no longer owned the property: The units had already been sold.

HUD turned the complaint over to the Department of Justice, which filed suit in federal court against Windham’s companies and Windham personally.

When the NAHB Legal Action Committee reviewed the case at the 2014 Spring Board of Directors meeting, it recommended that Windham receive the maximum amount the Legal Action fund provides, or $50,000. Support at this level is extremely rare, but it is still far less than Windham will need to spend in his defense in the future, which he estimates to be in excess of $75,000. His firm has already spent more than $35,000 in legal fees.

The committee took an additional step in offering to prepare an amicus curiae (friend of the court) brief on Windham’s behalf.

The NAHB Legal Action Fund is an important member benefit that helps defray litigation costs for builders, developers and state or local associations involved in these types of cases, and you can learn more by reviewing the guidelines. In essence, the fund:

  • Must support litigation that will benefit the housing and building industry nationwide. It is also designed to address issues commonly faced by builders or developers. Where possible, cases should be brought to the committee early in the litigation process.
  • Should be used primarily in a proactive role, encouraging and supporting the filing of high-quality litigation.

Aug. 1 is the deadline for applications that will be discussed at the 2014 NAHB Fall Board of Directors meeting. The Legal Action Committee will meet in Phoenix on Sept. 5.

Comments (1)

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  1. Milton Grant says:

    I have been down this road in 2001 and it cost us over $1,000,000. Our suit pertained to 880 garage product apartments in two complexes. Consent decree was ended in 2008.

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