[Federal Register Volume 65, Number 57 (Thursday, March 23, 2000)]
[Notices]
[Pages 15740-15794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6968]
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Part III
Department of Housing and Urban Development
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Final Report of HUD Review of Model Building Codes; Notice
Federal Register / Vol. 65, No. 57 / Thursday, March 23, 2000 /
Notices
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-4554-N-01]
Final Report of HUD Review of Model Building Codes
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Final report.
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SUMMARY: The United States Department of Housing and Urban Development
(HUD or the Department) issues a policy statement and Final Report of
HUD Review of Model Building Codes (Final Report) that identifies the
variances between the design and construction requirements of the Fair
Housing Act (the Act) and the:
BOCA National Building Code (BNBC), Building Officials and Code
Administrators International (BOCA) 1996 edition;
Uniform Building Code (UBC), International Conference of Building
Officials (ICBO) 1997 edition;
Standard Building Code (SBC), Southern Building Code Congress
International (SBCCI) 1997 edition; and
International Building Code First Draft (IBC), International Code
Council (ICC) November 1997; Proposed International Building Code 2000,
International Code Council (IBC-2000) Chapters 10 and 11, Appendix to
Chapter 11, and Section 3407 (1999).
This Final Report also contains guidance on the Department's policy
concerning the relationship between the requirements of the Act and its
standards.
The U.S. House of Representatives Committee on Appropriations
directed HUD to complete its review of a matrix that summarized the
provisions of the four model codes and to issue a policy statement by
December 31, 1999. H.R. Rep. No. 286, 106th Cong., 1st Sess. 34 (1999).
This Final Report is intended to meet that Congressional mandate. This
Final Report additionally is intended to provide technical assistance
to other interested parties on this issue. The Department has not and
does not intend to promulgate any new technical requirements or
standards by way of this Final Report. The Department does not intend
this Final Report to be considered an endorsement of any model building
code.
The Department does not wish to suggest through the issuance of
this report that it is shifting its responsibility to enforce the
design and construction requirements of the Act to any model code
organization or to state and local building officials. However, the
Department recognizes that one important way to increase compliance
with the design and construction requirements of the Act is to
incorporate those requirements into state and local building codes.
This Final Report is divided into chapters as follows:
Chapter 1--Introduction and Response to Public Comments
Chapter 2--Policy Statement
Chapter 3--IBC Analysis
Chapter 4--UBC Analysis
Chapter 5--SBC Analysis
Chapter 6--BOCA Analysis
FOR FURTHER INFORMATION CONTACT: Ms. Cheryl Kent, Director, Program
Compliance and Disability Rights Support Division, 451 Seventh Street,
SW, Room 5240, Washington, DC 20410-0500, telephone (202) 708-2333,
extension 7058. (This telephone number is not toll-free.) Hearing or
speech-impaired individuals also may access this number via TTY by
calling the Federal Information Relay Service at 1-800-877-8339.
This Final Report and the policy statement are also located at
www.hud.gov/fhe/modelcodes. The Fair Housing Act, as amended in 1988,
the regulations implementing the Act, and the Fair Housing
Accessibility Guidelines can also be obtained through links provided at
this web site. You may view the matrix or the updated matrix, or the
chapters of the codes that the Department reviewed; or purchase copies
of CABO/ANSI A117.1-1992 and ICC/ANSI A117.1-1998, at www.intlcode.org/fairhousing. ANSI A117.1-1986 is only available for purchase from
Global Engineering Documents, 15 Inverness Way East, Englewood,
Colorado 90112. However, copies of the 1986, 1992 and 1998 editions of
ANSI A117.1 may be viewed at the HUD headquarters library at 451
Seventh Street, SW, Washington, DC 20410 and at HUD Fair Housing
Offices in the following locations: Boston, Massachusetts; New York,
New York; Philadelphia, Pennsylvania; Atlanta, Georgia; Chicago,
Illinois; Fort Worth, Texas; Kansas City, Kansas; Denver, Colorado; San
Francisco, California; and Seattle, Washington.
Copies of all of the relevant documents, including the ICC/ANSI
A117.1-1998, the ANSI A117.1-1986, and the CABO/ANSI A117.1-1992 are
also available for viewing at the HUD Library at 451 Seventh St., SW,
Washington, DC 20410. To gain admission to the HUD Library you must
present identification to the security guards and ask to visit the
library. Photocopying in the HUD library is limited to 40 pages and all
of the documents, with the exception of the HUD produced documents, are
copyrighted and, therefore, not available for photocopying.
Dated: March 14, 2000.
Eva M. Plaza,
Assistant Secretary for Fair Housing and Equal Opportunity.
Chapter 1: Introduction and Response to Public Comments \1\
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\1\ In this document, citation for the United States Code is
U.S.C.; the citation for the Code of Federal Regulations is CFR; and
the citation for Federal Register publication is FR.
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Background
Title VIII of the Civil Rights Act (the Fair Housing Act), 42
U.S.C. 3601 et seq., prohibits discrimination in housing and housing
related transactions based on race, color, religion, national origin,
and sex. In 1988, Congress extended the protections of the Act to
families with children and persons with disabilities. 42 U.S.C. 3604.
(The Act refers to people with ``handicaps.'' Subsequently, in the
Americans with Disabilities Act of 1990 and other legislation, Congress
adopted the term ``persons with disabilities,'' or ``disability,''
which is the preferred usage. Accordingly, this Final Report
hereinafter uses the terms ``persons with disabilities,''
``disability'' or ``disabled.'') In response to the serious lack of
accessible housing in the United States, Congress provided that all
covered multifamily dwellings built for first occupancy after March 13,
1991, must include certain basic features of accessible and adaptive
design. 42 U.S.C. 3604(f)(3)(C). These basic accessibility requirements
are known as the Act's design and construction requirements. One of the
underlying concepts of the design and construction requirements is the
creation of housing that is accessible for persons with disabilities
but that does not necessarily appear to be different from conventional
housing.
The Act mandates that all covered multifamily dwellings built for
first occupancy after March 13, 1991, shall be designed and constructed
so that: (1) The public and common use portions of such dwellings are
readily accessible to and usable by persons with disabilities; (2) All
the doors designed to allow passage into and within all premises within
such dwellings are sufficiently wide to allow passage by disabled
persons in wheelchairs; and (3) All premises within such dwellings
contain the following features of adaptive
[[Page 15741]]
design: (a) An accessible route into and through the dwelling; (b)
Light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations; (c) Reinforcements in
bathroom walls to allow later installation of grab bars; and (d) Usable
kitchens and bathrooms such that an individual in a wheelchair can
maneuver about the space. 42 U.S.C. 3604(f)(3)(C).
The Act's design and construction requirements apply to ``covered
multifamily dwellings,'' which means ``buildings consisting of 4 or
more units if such buildings have one or more elevators; and ground
floor units in other buildings consisting of 4 or more units.'' 42
U.S.C. 3604(f)(7). The Act's design and construction requirements apply
to all covered multifamily dwellings built for first occupancy after
March 13, 1991. The Act's design and construction requirements do not
apply to alterations or renovations to multifamily dwelling units or to
single family detached houses.
The Act does not set forth specific technical design criteria that
have to be followed in order to comply with the design and construction
requirements. It does provide, however, that compliance with the
appropriate requirements of the American National Standard for
buildings and facilities providing accessibility and usability for
physically handicapped people, commonly referred to as ANSI A117.1,
satisfies the Act's design and construction requirements for the
interiors of dwelling units. 42 U.S.C. 3604(f)(4).
The Act states that Congress did not intend the Department to
require states and units of local government to include the Act's
accessibility requirements in their state and local procedures for the
review and approval of newly constructed covered multifamily dwellings.
42 U.S.C. Sec. 3604(f)(5)(C). However, Congress authorized the
Department to encourage the inclusion of these requirements into their
procedures. Id.
The Act also makes it clear that it does not invalidate or limit
any other state or federal laws that require dwellings to be designed
or constructed in a manner that affords persons with disabilities
greater access than that required under the Act. 42 U.S.C. 3604(f)(8).
Further, federally funded facilities and dwelling units covered by
section 504 of the Rehabilitation Act of 1973 (Section 504), the
Architectural Barriers Act (ABA), or, where applicable, the Americans
with Disabilities Act (ADA), must also comply with their respective
regulatory requirements, including the Uniform Federal Accessibility
Standard (UFAS). For Section 504, these regulatory requirements may be
found at 24 CFR part 8; for the ABA, 24 CFR part 40; and for the ADA,
28 CFR parts 35 and/or 36, as applicable.
In 1989, the Department issued its regulations implementing the
design and construction requirements of the Act. 24 CFR 100.205. In the
regulations, the Department specifically stated that compliance with
the appropriate requirements of ANSI A117.1-1986 satisfies the
requirements of the Act relating to interiors of dwelling units. 24 CFR
100.205(e).
Congress directed the Secretary of HUD to ``provide technical
assistance to states and units of local government and other persons to
implement [the design and construction requirements].'' 42 U.S.C.
3604(f)(5)(C). To this end, on March 6, 1991, the Department published
the ``Final Fair Housing Accessibility Guidelines,'' (the Guidelines)
at 56 FR 9472-9515. The Guidelines set forth specific technical
guidance for designing covered multifamily dwellings to be consistent
with the Fair Housing Act.
Section I of the Guidelines states:
These guidelines are not mandatory, nor do they prescribe
specific requirements which must be met, and which, if not met,
would constitute unlawful discrimination under the Fair Housing Act.
Builders and developers may choose to depart from these guidelines
and seek alternate ways to demonstrate that they have met the
requirements of the Fair Housing Act. These guidelines are intended
to provide a safe harbor for compliance with the accessibility
requirements of the Fair Housing Act.
56 FR at 9499.
On June 24, 1994, the Department published its ``Supplement to
Notice of Fair Housing Accessibility Guidelines: Questions and Answers
about the Guidelines,'' at 59 FR 33362-33368 (the Questions and Answers
About the Guidelines). The Department published a Fair Housing Act
Design Manual (Design Manual) in 1996 that was reissued in 1998 with
minor changes.
In 1992, the Department was contacted by the Council of American
Building Officials (CABO) and model building code organizations. CABO
advised the Department of its interest in drafting building code
language that would reflect the design and construction requirements of
the Act, and asked the Department to provide technical assistance to
its Board for Coordination of Model Codes (BCMC). The Department
recognized that incorporation of building code requirements that are
consistent with the Act's requirements would provide increased
compliance. Therefore, in support of this effort, the Department agreed
to provide technical assistance to BCMC and the building industry
organizations during 1992 and 1993. Subsequently, the model building
code organizations incorporated the results of their efforts into the
model building codes.
The American National Standards Institute (ANSI) is responsible for
establishing technical standards in many different areas. Among the
standards addressed by the ANSI, through the A117 Committee, are
technical standards for the design of housing and facilities that are
accessible to persons with disabilities. BCMC recommended that the ANSI
A117 Committee set up a Residential Task Force to develop technical
criteria to address the Act's accessibility requirements. The
Department is a member of the ANSI A117 Committee and served on the
Residential Task Force. The focus of the ANSI Residential Task Force
was to develop technical criteria to address the accessibility
requirements for dwelling units that are covered by the Act. This
effort was completed and included in the ICC/ANSI A117.1-1998. (The
reference to ICC, International Code Council, reflects an
organizational change in the ANSI only.) Because prior to 1998, ANSI
A117.1 already included technical criteria for fully accessible
dwelling units, the 1998 ICC/ANSI A117.1 refers to fully accessible
dwelling units as ``Type A dwelling units.'' Section 1003 of ICC/ANSI
A117.1-1998 contains the technical criteria for ``Type B dwelling
units,'' which are intended to reflect the technical requirements for
dwelling units required by the Act to be accessible.
In 1997, CABO, three model building code organizations, and several
building industry organizations contacted the Department to discuss,
among other items, the importance of assuring that the design and
construction requirements of the Act were accurately reflected in the
three model building codes and in the draft International Building Code
(IBC), which was scheduled for completion in 2000. The Department met
with representatives of these groups along with representatives of
disability advocacy organizations and indicated its willingness to
review the model building codes for consistency with the requirements
of the Act, the regulations, and the Guidelines, and then convene a
public meeting at a later date to share the results of that review.
In December 1997, CABO submitted to the Department a matrix that
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compared four model building codes to the Act's design and construction
requirements. In the fall of 1998, the Department awarded a contract to
Steven Winter Associates, Inc. (SWA) to analyze the matrix and the
model building codes and to identify those sections of the codes that
did not meet the requirements of the Act, regulations, and the
Guidelines. The Department also requested that SWA provide
recommendations on how each identified variance could be revised to
conform with the Act, the regulations, and the Guidelines.
The original matrix focused on the 1997 First Draft of the IBC.
Because the IBC had progressed to a proposed IBC 2000 in 1999, the
International Code Council (ICC) asked the Department to include in its
review, to the greatest extent possible, the proposed IBC 2000. The
Department also was asked to review the new 1999 edition of the
National Building Code published by BOCA. The Department agreed to
undertake a limited review of the proposed IBC 2000, but due to time
constraints, was unable to review the 1999 BOCA National Building Code.
To facilitate review of portions of the proposed IBC 2000, BOCA
prepared an update to the matrix that compared the Guidelines with the
First Draft IBC and the proposed IBC 2000. In addition, the Department
was provided with copies of Chapters 10 and 11, Appendix to Chapter 11,
Section 3407, and Appendix 34-2 of the proposed IBC 2000.
The Department formed a Model Code Working Group (Working Group) to
work with its contractor, SWA, on the review of the model building
codes. The Working Group consisted of staff from the Office of Fair
Housing and Equal Opportunity, the Office of General Counsel, and the
Office of Housing. A representative of the U. S. Department of Justice
(DOJ) also participated in the Working Group.
On October 26, 1999, the Department published a draft policy
statement and draft report of four model building codes which
identified the variances between these codes and the Act's design and
construction requirements (the draft report). On November 10, 1999, the
Department convened a public meeting to listen to comments on the draft
report. Ten persons, many representing consolidated comments from
various groups, presented oral comments at the public meeting. The
Department also solicited and received written comments. The Department
received 30 public comments, representing input from many organizations
and individuals. Almost all of those who submitted comments focused on
the draft report's discussion of the proposed IBC 2000.
Those who submitted comments included Acanthus Architecture and
Planning PC (Arizona), the American Institute of Architects (AIA), the
American Seniors Housing Association, the Arizona Center for Disability
Law, the Bazelon Center for Mental Health Law, Paul Bishop (California
architect), the Boston Office of Civil Rights, the Building Officials
and Code Administrators International (BOCA), the Colorado Civil Rights
Division, the Consortium of Citizens with Disabilities, the Disability
Rights Action Coalition for Housing, the Disability Rights Action
Committee, Disability Rights Inc., the Eastern Paralyzed Veterans
Association (EPVA), Larry Field (Delaware accessibility consultant and
codes enforcement expert), the International Code Council (ICC), the
International Conference of Building Officials (ICBO), the Kansas
Disability Rights Action Coalition for Housing, Marsha Mazz with the
United States Access Board, Bruce McKarley (California building code
official), the Monroe County Legal Assistance Corporation (Rochester,
New York), the National Apartment Association (NAA), the National
Association of Home Builders (NAHB), the National Fair Housing
Alliance, the National Multi Housing Council (NMHC), the New Mexico
Governor's Committee on Concerns of the Handicapped, the Paralyzed
Veterans of America (PVA), Larry Perry (AIA), the Rochester Center for
Independent Living, Emory Rodgers (an Arlington, Virginia building code
official), the Southern Building Code Congress International (SBCCI),
the Topeka Independent Living Resource Center, Wheelchair Access Now
Today, Bill Wright (Oklahoma architect), and Leslie Young with the
Center for Universal Design at NC State University.
The AIA, the BOCA International, the ICC, the ICBO, the NMHC, and
Larry Perry, Architect, AIA, submitted one set of consolidated comments
and later submitted specific recommended code language to address
variances that the Department had identified in the draft report. The
Department met with this group and others, including the NAHB and EPVA,
to discuss the recommendations. In addition, HUD staff members had
telephone conversations with some of the commenters in order to obtain
clarification of their comments or solicit their technical knowledge of
the issues raised in their comments.
General Comments on the Draft Report
Dialogue With Code Organizations
Comments
The overwhelming majority of the commenters praised or endorsed
HUD's efforts to provide technical assistance to the model building
code organizations to help ensure that the model codes meet the
accessibility requirements of the Act. A number of commenters strongly
urged HUD to continue to maintain a dialogue with the model code
organizations to ensure that future updates to the International
Building Code are consistent with the Act's accessibility requirements.
Some commenters cautioned that no loopholes should weaken the scoping
or technical requirements of the Act.
Response
The Department agrees with these comments and intends to be
actively engaged in development of future editions of ANSI A117.1
through its participation on the ANSI A117 Committee. The Department
also is available for consultation in the development of future
editions of the International Building Code. In this Final Report, the
Department recommends code language that may be used by model code
organizations and states and localities that wish to modify their codes
to be consistent with the Act. However, the Department believes that
its recommendations are a continuing step in the dialogue needed to
achieve consistency between the model codes, particularly the
International Building Code, and the Act's design and construction
requirements.
CABO/ANSI A117.1-1992 and ICC/ANSI A117.1-1998 As Safe Harbors
Comments
Many commenters commended the Department for recognizing ANSI
A117.1-1998 as a safe harbor under the Fair Housing Act. Several
commenters stated that ICC/ANSI A117.1-1998 is the basis for the
accessibility provisions in the model codes and that in their view,
HUD's acceptance of ANSI A117.1-1998 as a safe harbor resolves many of
the concerns of the multifamily housing industry. One commenter also
urged the Department to accept future editions of the ANSI A117.1
standard as being a safe harbor for complying with the Fair Housing
Act.
As new editions of ANSI A117.1 have been developed, various
organizations have encouraged HUD to acknowledge that compliance with
those new editions constitutes safe harbors for
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compliance with the Act. For example, in 1998, one commenter wrote to
HUD that:
``The ANSI standard has been revised * * * and a 1998 version is
about to be published. It is logical to rely on the latest version
of a standard, unless a statute specifically refers to a particular
edition. In addition, there are sound policy reasons to rely on the
latest version of the ANSI standard, since it reflects improvements
in accessible design. Since the Fair Housing Act does not refer to a
particular edition of the ANSI standard, it would be reasonable for
the [HUD Design] Manual and the Guidelines to specifically permit
the use of the current 1998 ANSI standard. The 1998 ANSI standard is
currently used by local code officials around the country.
Therefore, we urge HUD to clarify that the most recent version of
ANSI meets the requirements of the Fair Housing Act.''
Response
In response to the many commenters who have encouraged the
Department to adopt the ICC/ANSI A117.1-1998, the Department will soon
be publishing an interim rule, amending certain sections of 24 CFR
100.200 to state that compliance with the appropriate requirements of
the 1986, 1992, or 1998 editions of ANSI A117.1 suffices to satisfy the
Act's design and construction requirements for the interiors of
dwellings and public and common use areas. Compliance with these
versions of ANSI A117.1, the Guidelines, or the Design Manual are all
safe harbors under the Act.
The Act explicitly states that compliance with the appropriate
requirements of ANSI A117.1 suffices to satisfy the Act's design and
construction requirements for the interiors of dwellings. 42 U.S.C.
3604(f)(4). However, Congress did not intend to limit the ways to
comply with the requirements of the Act to the ANSI A117.1 standard.
Congress specified the ANSI A117.1 standard in the Act in order to
assure designers of new multifamily housing that if they follow the
ANSI standard, they will have met the Act's adaptive design
requirements. Congress also noted that its reference to ANSI was not
intended to require ``that designers follow this standard exclusively,
for there may be other local or state standards with which compliance
is required or there may be other creative methods of meeting these
standards.'' H.R. Rep. No. 711, 100th Cong., 2d Sess., p.27. (1988).
In 1989, the Department issued its regulations implementing the
design and construction requirements of the Act. 24 CFR 100.205. At the
time Congress passed the Act, and the Department promulgated its
regulations, the current edition of ANSI A117.1 was the 1986 edition.
In response to concerns that an ``open ended'' reference to the ANSI
standard constituted an unlawful delegation of the Department's
rulemaking authority, the Department identified the 1986 ANSI A117.1
edition in its final rule implementing the Fair Housing Act, and stated
its intent to review and, if appropriate, to adopt future editions as
they were published.
It is important to note that ANSI A117.1 contains only technical
criteria, whereas the Fair Housing Act, the implementing regulations,
and the Accessibility Guidelines contain both ``scoping'' and technical
criteria. Scoping criteria define when a building element or space must
be accessible; technical criteria provide the technical specifications
on how to make an element accessible. Thus, designers and builders who
wish to follow ANSI A117.1 instead of the Accessibility Guidelines must
still look to the Act and the Department's regulations to determine
which buildings, dwelling units, and elements are covered by the Act.
Type A Units
Comment
A commenter stated that the HUD draft report does not point out
that Type A units in ICC/ANSI A117.1-1998 exceed the Fair Housing Act
Accessibility Guidelines and urged HUD to clarify that Type A units are
not required under the Act.
Response
Since 1980, ANSI A117.1 has included technical criteria for fully
accessible dwelling units. At the time the Act was passed, the only
ANSI A117.1 standard for residential design were standards for a fully
accessible dwelling unit. The ICC/ANSI A117.1-1998 now references two
types of dwelling units, a ``Type A dwelling unit,'' which is intended
to be a fully accessible dwelling unit as has been traditionally
provided for in ANSI A117.1, and a ``Type B dwelling unit,'' which is
intended to meet the Act's technical requirements for the interiors of
dwellings.
The Department agrees that the Act does not require that private
developers build new construction to the Type A standard, although a
Type A unit will satisfy the Fair Housing Act requirements. Congress
specifically recognized this when it stated that compliance with the
appropriate requirements of ANSI A117.1 suffices as compliance with the
Act.
Type B Units
Comment
One commenter disagreed with the draft report's conclusion that the
ICC/ANSI A117.1-1998 standard is consistent with the Act's
requirements. This commenter stated that there are numerous
requirements in the ICC/ANSI A117.1 standard for Type B units that go
beyond Fair Housing Act requirements, although Type B units are
supposed to reflect the Fair Housing Act accessibility requirements.
The commenter proffered that the draft report should have made an
explicit comparison between the Act's requirements and Type B
requirements in ICC/ANSI A117.1. This commenter subsequently submitted
a list of eight areas where this commenter believes the requirements in
the IBC exceed those in the Guidelines. These eight areas are: (1) The
definition, scoping and requirements for Type A dwelling units; (2)
Location of accessible routes; (3) Requirements for a minimum number of
accessible entrances; (4) Technical provisions for security and
intercom controls and exceptions for redundant controls; (5)
Requirements for laundry equipment within dwelling units; (6)
Exceptions for provisions for bath facilities; and (7) Dwelling units
with accessible communication features; and (8) Exceptions to
provisions for ``lavatory.''
Response
The Department will take the commenter's concerns under advisement
and will work with this commenter and other interested organizations to
review these areas of concern. In addition, the Department will
continue to work with members of the Committee in the development and
refinement of the ANSI A117.1 criteria. The Department will provide
technical assistance to state and local governments that are
considering adopting, either completely or with modification, model
codes or other provisions in their building codes in order to reflect
the requirements of the Act.
Further, the Department pledges to work with the model code
organizations as they review and revise the International Building
Code. The ICC plans to issue a ``stand-alone'' document containing the
accessibility requirements found in the IBC 2000, incorporating its
responses to the Department's recommendations in this Final Report.
This ``stand alone'' document will contain the IBC provisions that meet
or exceed the design and construction requirements of
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the Fair Housing Act. The ICC and the National Association of
Homebuilders (NAHB) are working on an appendix to the ``stand alone''
document to address the eight areas where they agree that the Type B
dwelling unit exceeds the Fair Housing Accessibility Guidelines. The
Department has agreed to review those documents and is committed to
working with those organizations and others to arrive at a document in
code language to serve as a safe harbor under the Fair Housing Act
Amendments for persons who design and construct multifamily dwellings
to its specifications.
By way of further explanation with respect to the Department's
draft report, the purpose of the Department's review was to identify
any instances where the technical criteria in the later versions of
ANSI A117.1 did not provide the same level of accessibility as
described in the Guidelines, the 1986 ANSI A117.1, or as mandated by
the Act. The Department found no such instances where a difference in
the technical criteria was inconsistent with the requirements of the
Act.
The Act does not require that developers of covered multifamily
housing build according to the ANSI A117.1 standard or to its Type B
dwelling unit design criteria. Compliance with the ICC/ANSI A117.1 for
Type B dwelling units is one of several ways to comply with the Act. As
stated above, the Fair Housing Act's accessibility requirements can be
achieved in a number of ways. However, a developer would be required to
comply with a state or local code or law to which they are otherwise
subject, that has adopted either a model code or accessibility standard
that includes the Type B dwelling unit.
The Act recognized that many states and localities, as well as
certain other federal laws, already had established stricter
accessibility requirements than those provided for under the Act. The
Act states that it shall not be construed to invalidate or limit any
law that requires dwellings to be designed and constructed in a manner
that affords persons with disabilities greater access than is required
under the Act. 42 U.S.C. 3604(f)(8). To the extent that states and
localities adopt ANSI A117.1 standards that go beyond the Act's minimum
standards, the Department is without authority or desire to invalidate
or limit this adoption.
The Accredited Standards Committee on Architectural Features and
Site Design of Public Buildings and Residential Structures for Persons
With Handicaps (A117) developed the A117.1 ANSI standards in 1986,
1992, and 1998. That Committee included this Department as well as
other federal agencies, building and housing industry representatives,
building code organizations, disability advocacy organizations, and
many of the commenters on HUD's draft report. The American National
Standards Institute which adopted the standards submitted by the
Committee, requires that due process and consensus be met by the
Committee. The ANSI Board of Standards Review considers that consensus
has been met when ``substantial agreement has been reached by directly
and materially affected interests.'' Consensus means more than a simple
majority but does not necessarily require unanimity, and requires that
all points of view be heard.
Relationship Between the Act's Requirements and Other Accessibility
Requirements and Standards
This Final Report addresses only the application of the
requirements of the Act to covered multifamily dwellings. Certain of
these dwellings, as well as certain public and common use areas of such
dwellings, may also be covered by various other laws, such as the
Architectural Barriers Act of 1968, 42 U.S.C. 4151-4157 (the ABA);
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (Section
504); and the Americans with Disabilities Act of 1990, 42 U.S.C. 12101-
12213 (the ADA).
The ABA applies to certain buildings financed in whole or in part
with federal funds. The Department's regulations for the ABA are found
at 24 CFR parts 40 and 41. Section 504 applies to programs and
activities receiving federal financial assistance, and programs and
activities conducted by Executive agencies, including the Department.
The Department's regulations for Section 504 are found at 24 CFR parts
8 and 9. The Fair Housing Act accessibility requirements apply to both
private housing and to government-funded housing, including federally
funded housing, which is also subject to the accessibility requirements
of Section 504. HUD funded housing must be designed and constructed to
meet the scoping and technical requirements of both the Fair Housing
Act and Section 504, and in certain instances, the ABA.
The ADA is a broad civil rights law guaranteeing equal opportunity
for individuals with disabilities in employment, public accommodations,
transportation, state and local government services, and
telecommunications. The Department of Justice (DOJ) is the lead federal
agency for implementation of the ADA. HUD does not have the authority
to review the model building code standards for compliance with the
ADA.
Comments
A number of commenters expressed concern that the draft report
included within the coverage of the Act types of occupancies and uses
that are also covered under the ADA. They urged the Department to make
it clear that the Act does not preempt any of the accessibility
requirements of the ADA. One commenter requested that HUD coordinate
with DOJ with respect to the Act and ADA accessibility standards as
they apply to public and common use areas.
One commenter requested that the Department encourage architects
and builders to follow design and construction concepts incorporated in
standards for ``universal design'' of accessible housing.
Response
Although the Department's team which reviewed the model building
codes included staff from DOJ, the focus of the review was the Fair
Housing Act. In addition, as stated above, the Department does not have
authority to review the model building codes for compliance with the
ADA.
Title II of the ADA applies to housing that is designed and
constructed by a state or local governmental entity (including a public
housing authority). Because most government-constructed housing is
constructed with federal funds, in the majority of circumstances, there
will be overlapping coverage of that housing under the Act, Title II,
and Section 504. In some cases a state or local government may develop
housing without the use of federal funding. In those cases, the
requirements of the Act and Title II of the ADA, but not Section 504,
would apply to the housing.
Title III of the ADA, in relevant part, applies to commercial
facilities and public accommodations. Inns, hotels, motels, and other
places of lodging are public accommodations under Title III of the ADA,
as are dormitories, homeless shelters, nursing homes, and some
timeshares. See 28 CFR 36.104. In addition, the common areas for public
use at ``covered multifamily dwellings'' under the Act must meet the
ADA Standards for Accessible Design (ADA Standards). A rental office in
a multifamily residential development, a convenience store located in
that development, or a room in a home that is used as a day care center
or medical office, would be covered under Title III of the ADA. 28 CFR
36.104. Common use areas that are for use only by the
[[Page 15745]]
residents and their guests would not be covered by the ADA.
The Department recognizes that the Act's design and construction
requirements do not preempt the ADA and wishes to clarify that in those
cases where a development is subject to more than one accessibility
standard, the laws and the standards must be read together and followed
together.
There are certain properties, or portions thereof, that are covered
by both the Act and Title II and/or Title III of the ADA. These may
include certain timeshares, dormitories, residential hotels, boarding
houses, nursing homes, homeless shelters, congregate care facilities,
public use portions of private multifamily dwellings, and public
housing. These properties must be designed and built in accordance with
the accessibility requirements of both the Act and the ADA. In
addition, to the extent that the requirements of these various laws
overlap, the more stringent requirements of each law must be met, in
terms of both scoping and technical requirements.
In the preamble to its rule implementing Title III, DOJ discussed
the relationship between the requirements of the Fair Housing Act and
the ADA. The preamble noted that many facilities are mixed use
facilities. For example, a hotel may allow both residential and short
term stays. In that case, both the ADA and the Fair Housing Act may
apply to the facility. The preamble to the Title III rule also stated
that residential hotels, commonly known as ``single room occupancies,''
may fall under the Fair Housing Act when operated or used as long term
residences, but they are also considered ``places of lodging'' under
the ADA when guests are free to use them on a short term basis. The
preamble also discussed a similar analysis with respect to homeless
shelters, nursing homes, residential care facilities, and other
facilities where persons may reside for varying lengths of time. The
preamble concluded that such facilities should be analyzed separately
under both the Fair Housing Act and the ADA. 56 FR at 3551-52.
Enforcement of the Fair Housing Act
Comments
Many of the commenters specifically urged HUD to continue to
vigorously enforce the Act's accessibility requirements. Several other
commenters made clear that they see incorporation of the Act's
requirements into the codes as a supplement to the enforcement methods
currently available under the Act, not as a replacement for that
enforcement. One commenter, a local building code official, stated that
by adoption of codes that include the requirements of the Act, state
and local jurisdictions will be assisting HUD in its enforcement
efforts. Finally, several of the commenters indicated that once the
Act's requirements are incorporated into a building code, the
permitting and inspection process should not create a safe harbor for
builders who receive permits, nor should it absolve housing industry
professionals from their responsibilities under the Act.
Response
The Act is clear that while state and local building code officials
are responsible for enforcing the building code standards adopted in
their respective jurisdictions, 42 U.S.C. 3604 (f)(5)(B); 24 CFR
100.205(g), the Department is responsible for enforcing the design and
construction requirements of the Act. 42 U.S.C. 3604(f)(6)(A), 3610. If
a jurisdiction adopts a model building code that HUD has determined
conforms with the design and construction requirements of the Act, then
covered residential buildings that are constructed in accordance with
plans and specifications approved during the building permitting
process will be in compliance with the requirements of the Act, unless
the building code official has waived one or more of those
requirements, or the building code official has incorrectly interpreted
or applied the building code provisions.
However, the fact that a jurisdiction has adopted a code that
conforms with the accessibility requirements of the Act, or that
construction of a residential building was approved under a code, does
not change the Department's statutory responsibility to conduct an
investigation based on receipt of a complaint from an aggrieved person
to determine whether the requirements of the Act have been met. 42
U.S.C. 3604(f)(6)(A); 24 CFR 100.205(h). Section 804 of the Act
provides that ``determinations by a State or unit of general local
government under paragraphs 5(A) and (B) shall not be conclusive in
enforcement proceedings under this title.'' 42 U.S.C. 3604(f)(6)(B). A
full discussion of the Department's enforcement responsibilities may be
found in the Department's policy statement connected with this Final
Report.
Certification of Codes
Comments
Two commenters recommended that HUD consider certifying state and
local building codes as meeting the accessibility requirements of the
Fair Housing Act.
Response
There are over 40,000 state and local building code jurisdictions
in the United States. The Act does not require the Department to
certify codes. However, through its work with the model code
organizations, and existing and planned activities to provide technical
assistance to state and local building code officials, the Department
intends to work with building code organizations to ensure that those
codes incorporate the requirements of the Act.
Comments Related to the Model Code Reports
Definition of Dwelling Unit
In Draft Recommendation Number 1 in the draft report on the
proposed IBC 2000, the Department suggested that the proposed IBC 2000
be revised to modify the definition of ``dwelling unit,'' for purposes
of the accessibility requirements of the proposed IBC 2000 at Section
1102.1, so that it covers all the residential structures that are
covered by the Act, as follows:
A single unit providing complete, independent living facilities
for one or more persons, including permanent provisions for living,
sleeping, eating, cooking and sanitation. For purposes of Chapter
11, sleeping accommodations intended for occupancy by a separate
household in structures with shared cooking or toileting facilities
shall be considered to be separate dwelling units.
Comments
A large number of commenters believed that the IBC's definition of
``dwelling unit'' should remain as it is. Two commenters pointed out
that adopting Recommendation 1 would result in the inclusion of such
buildings as hotels, hospitals and prisons that otherwise are neither
R-2 properties nor covered by the Act's design and construction
requirements. One commenter also noted that adoption of Recommendation
1 would require building officials to make a decision as to whether
residents of a building with shared kitchens and bathrooms were
separate households or a single ``family.'' That commenter also stated
that HUD's scoping recommendations may create confusion by suggesting
that certain technical terms mean something different in Chapter 11
than they do in other chapters of the existing model codes and the
proposed IBC.
One commenter specifically supported Recommendation 1. That
commenter noted that the Act
[[Page 15746]]
recognizes that group homes that operate as a single housekeeping unit
are indistinguishable (for land use purposes) from homes that house
traditional families. In the clearest sense, then, according to the
commenter, such group homes do not constitute ``covered multifamily
dwellings.'' The commenter noted further that, as a practical matter,
most group homes are established in existing single family structures.
Those few group homes that are newly constructed under HUD's Section
811 program are required to meet the accessibility requirements set
forth in the Department's Section 504 regulations.
One commenter recommended that a new word or phrase should be used
to ensure coverage of those situations in which sleeping rooms with
shared kitchens or bathroom facilities are covered by the Act. Another
commenter had a similar suggestion that, rather than revising the
definitions of ``dwelling unit'' and the use groups, ICC should adopt
one new term that describes all covered multifamily dwellings,
including dormitories, timeshares, congregate care facilities, shared
kitchens and bathrooms, and excludes such transient properties as
hotels. In subsequent discussions with the Department, the ICC
recommended adding a new term and definition for ``sleeping unit,''
which captures covered units not now covered by the IBC. The ICC
suggested, ``Sleeping Unit--a room or space in which people sleep,
which can also include permanent provisions for living, eating, and
sanitation, but does not include permanent kitchen facilities.'' That
term would be used in conjunction with the term dwelling unit where
appropriate in the IBC.
Another commenter also suggested an alternate revision,
specifically that the term ``Dwelling Unit, Type B'' be revised to
include a single unit providing complete, independent living facilities
for one or more persons, including permanent provisions for living,
sleeping, eating, cooking and sanitation. The revised term would also
include units with permanent provisions for living and sleeping with
shared cooking or sanitation facilities outside the unit. The Type B
unit would be designed and constructed in accordance with ICC/ANSI
A117.1, intended to be consistent with the technical requirements of
fair housing required by federal law.
Response
Rather than revising the definition of ``dwelling unit,'' in new
Recommendation Number 2, the Department recommends adding the term
``sleeping accommodation intended as a residence'' to Chapter 11 of the
proposed IBC 2000.
The comments to the proposed IBC 2000 also apply, with variation,
to the remaining three model building codes. In its Final Report on the
UBC, the Department has recommended changes to appropriate sections of
Chapter 11 covering ``guestrooms'' that are intended as a residence. In
the Final Report on the BNBC and the SBC, the Department has
recommended the addition of a new term, ``sleeping unit,'' defined as a
room in which people sleep intended to be occupied as a residence,''
and adding that term to the appropriate sections of Chapter 11 of BNBC
and SBC.
However, the Department recognizes that there may be other
approaches to resolving this variance that may be as or more effective.
The Department will continue to work with the model code organizations
and other interested members of the public on this issue.
It is the Department's position that detached single family
dwellings occupied by persons who function as a single household,
including group homes that function as a single household, are not
``covered multifamily dwellings'' for purposes of the design and
construction requirements of the Act. However, the Department's
regulations make it clear that all group homes are ``dwelling units''
for purposes of the Act's prohibitions on discrimination based on
disability. See 24 CFR 100.201. The Department further recognizes that
other accessibility standards, including accessibility requirements
mandated under programs providing federal financial assistance, apply
to detached single family group homes.
Recommended Revision to the Definition of ``Dwelling Unit, Type B''
Section 1102 of the proposed IBC 2000 defines a ``Dwelling Unit,
Type B'' as a dwelling unit designed and constructed for accessibility
in accordance with ICC/ANSI A117.1-1998, ``intended to be consistent
with the technical requirements of fair housing required by federal
law.'' The Department did not discuss this definition in its draft
report.
Response
In response to the comments concerning the definition of ``dwelling
unit,'' and the comments concerning the relationship between the
requirements of the Fair Housing Act and other federal accessibility
standards, the Department has added a new finding of a variance, and a
new Recommendation Number 1, in the Final Report on the proposed IBC
2000 with respect to the definition of a ``Dwelling unit, Type B.''
This Recommendation is intended to clarify that the Type B dwelling
unit incorporates the requirements of the Fair Housing Act, but not
necessarily the requirements of any other federal law.
Transient Housing
In Draft Recommendation 2 of its draft report on the proposed IBC
2000, HUD suggested that the proposed IBC 2000, and other model codes,
be revised to make clear that certain types of housing that the model
codes viewed as transient are dwellings subject to the requirements of
the Fair Housing Act, including the design and construction
requirements. This housing may include timeshares, residential hotels,
or homeless shelters. Most of the model codes use a 30-day measure as
the means to determine whether a building is for transient use and thus
not a dwelling subject to their accessibility requirements for
dwellings in Chapter 11.
It is the Department's position that a 30-day measure is
inappropriate in determining whether a building is covered by the Act.
As stated in its draft report, the Department's position on this issue
is discussed in the Questions and Answers About the Guidelines. Thus,
the draft report echoed the Questions and Answers when it noted that
length of stay is only one factor in determining whether a building is
a ``covered multifamily dwelling.'' Other factors to be considered
include: (1) Whether the rental rate for the unit will be calculated
based on a daily, weekly, monthly or yearly basis; (2) Whether the
terms and length of occupancy will be established through a lease or
other written agreement; (3) What amenities will be included inside the
unit, including kitchen facilities; (4) How the purpose of the property
will be marketed to the public; (5) Whether the resident possesses the
right to return to the property; and (6) Whether the resident has
anywhere else to which to return.
Comments
Only one commenter supported the Department's recommendation, and
that commenter encouraged HUD to provide a more detailed means to
measure whether a residential occupancy is ``primarily transient in
nature'' or ``primarily permanent in nature.''
Several commenters suggested that HUD should endorse the 30-day
measure of transience used in the model codes, stating that length of
stay is the most prevalent, substantive and reliable criteria.
[[Page 15747]]
With respect to timeshares specifically, one group of commenters
suggested: (1) Deleting ``vacation'' because the reason for the
timeshare is irrelevant, and (2) listing timeshares as R-1 occupancies,
but scoping them in Chapter 11 with the same criteria as for R-2
occupancies. The Department agrees that the term ``vacation'' is
unnecessary.
Response
After considering the comments, HUD agrees that revising the IBC's
residential use groups, as reflected in Draft Recommendation 2, would
not be the most appropriate way to ensure that timeshares, residential
hotels, homeless shelters occupied as a residence, boarding houses, and
similar short-term housing meet the accessibility requirements in
Chapter 11 of the Code. However, the Department continues to believe
that the 30-day test of transience used by the IBC is inappropriate. To
endorse such a requirement would mislead designers, builders and other
readers of the code because it would give the false impression that
such housing need not meet the requirements of the Act. The Department
endorses the factor analysis stated in the above response for
determining whether a dwelling is not transient.
In promulgating the fair housing regulations and the Guidelines,
HUD specified as dwellings covered by the Act and its design and
construction requirements such short-term housing as time-sharing
properties and homeless shelters. See 24 CFR 100.201; 56 FR at 9500; 54
FR at 3238 & 3244. Courts also have applied the Act's general
requirements to various types of short-term housing, including
timeshare units, Louisiana Acorn Fair Housing v. Quarter House, Oak
Ridge Park, Inc., 952 F. Supp. 352, 359 (E.D. La. 1997); housing for
migrant farm workers, Lauer Farms, Inc. v. Waushara County Board of
Adjustment, 986 F. Supp. 544, 559 (E.D. Wis. 1997), Hernandez v. Ever
Fresh Co., 923 F. Supp. 1305, 1308 (D. Ore. 1996), Villegas v. Sandy
Farms, Inc., 929 F. Supp. 1324, 1328 (D. Ore. 1996); nursing homes,
Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1102 (3d Cir. 1996),
United States v. Commonwealth of Puerto Rico, 764 F. Supp. 220 (D.P.R.
1991); a facility for people with HIV, Baxter v. City of Belleville,
720 F. Supp. 720, 731 (S.D. Ill. 1989); homeless shelters, Turning
Point v. City of Caldwell, 74 F.3d 941 (9th Cir. 1996), Woods v.
Foster, 884 F. Supp. 1169, 1173 (N.D. Ill. 1995); a residential school
for emotionally disturbed children, United States v. Massachusetts
Industrial Finance Agency, 910 F. Supp. 21, 26 n.2 (D. Mass. 1996); and
seasonal vacation bungalows, United States v. Columbus Country Club,
915 F.2d 877, 881 (3d Cir. 1990), cert. denied, 501 U.S. 1205 (1991).
In finding that these types of short-term residencies are subject
to the Act's requirements, the courts have noted that length of stay is
not the sole measure of whether the property is a ``dwelling'' under
the Act. The courts have looked to various factors, including whether
the resident possesses the right to return to the property, whether he
or she has anywhere else to which to return, and the amenities at the
property. See, e.g., Louisiana Acorn Fair Housing, 952 F. Supp. at 359;
Woods v. Foster, 884 F. Supp. at 1173; Baxter v. City of Belleville,
720 F. Supp. at 731.
The factors that HUD set forth in the draft report seek to provide
guidance on determining whether a property is a short-term dwelling
covered by the Act or a transient property that is not covered by the
Act. HUD continues to believe that these factors must be considered by
owners, designers, builders, developers and architects in determining
whether a building must be designed and constructed in accordance with
the Act.
In sum, the Department cannot endorse the 30-day measure that the
proposed IBC 2000 and other model codes use. Therefore, the Department
is retaining its determination that three of the model codes do not
meet the requirements of the Act in that regard. The UBC defines
residential use groups differently than the other three model codes,
and the Department did not find a variance with respect to that model
code.
Accordingly, because the above-described types of housing which are
subject to the Act are not required to meet IBC Chapter 11's
requirements for dwelling units, the IBC is not consistent with the
Act, the regulations and the Guidelines. At this time, the Department
is uncertain how best to resolve this inconsistency between the IBC and
the Department's regulations. Therefore, the Department is withdrawing
Draft Recommendation Number 2. The Department will continue to work
with ICC and other interested code, industry and advocacy organizations
to develop language that appropriately conveys to builders and
designers that certain residencies of less than 30 days must meet the
Act's accessibility requirements. In the meantime, the Department
believes the factors listed above must be considered by owners,
builders, developers, designers and architects in determining whether
the requirements of the Act apply to the design and construction of
buildings with rooms for short term occupancy.
Assisted Living/Congregate Housing
In Draft Recommendation Number 3 on the proposed IBC 2000, the
Department suggested that the definition of ``dwelling unit'' contained
in Draft Recommendation Number 1 be adopted and that the proposed IBC
2000 be revised to modify the language of the charging paragraph of the
proposed IBC 2000 Section 1107.5.4, Accessible dwelling units.
Modification to the charging paragraph would require that in
occupancies in Group R-2 and R-3, as applicable in Section 101.2, where
there are four or more dwelling units in a single structure, every
dwelling unit shall be a Type B dwelling unit. In occupancies in Group
R-4 where there are four or more dwelling units in a single structure,
at least one shall be Type A, and all other dwelling units shall be
Type B dwelling units. In occupancies in Group I-1 where there are four
or more dwelling units in a single structure, at least 4 percent, but
not less than one, of the dwelling units shall be Type A, and all other
dwelling units shall be Type B. In nursing homes of Group I-2, where
there are four or more dwelling units in a single structure, at least
50 percent, but not less than one, of the dwelling units shall be Type
A dwelling units, and all of the other dwelling units shall be Type B.
Comments
One group of commenters suggested that rather than adopting Draft
Recommendation Number 3, the IBC should be revised to make it clear
that all covered units must comply with the requirements for Type B
dwelling units, in addition to the ADA Standards for accessible units.
Response
After consideration of all of the comments, the Department has
decided to modify its Draft Recommendation Number 3 with a new
Recommendation Number 2 in the Final Report on the proposed IBC 2000
which recommends new language to be included in Section 1107.5.4 that
requires ``sleeping accommodations intended to be occupied as a
residence'' to be Type B. In addition, under its new Recommendation
Number 2, the Department recommends modifications to the charging
paragraphs of Sections 1107.3.1 (Group I-1), 1107.3.2 (Group I-2), and
1107.5.7 (Group R-4) which require all sleeping accommodations intended
to be occupied as a residence to be Type B. Additionally, since these
[[Page 15748]]
comments also apply to other model building codes reviewed, similar
modifications have been made to each of those reports.
Definition of ``Ground Floor''
In its draft report, the Department concluded that the IBC's
scoping of Type B dwelling units does not adequately address situations
where there may be more than one ground floor in a building. The
Department's Draft Recommendation Number 4 for addressing this variance
was that the proposed IBC 2000 define the term ground floor for
purposes of Chapter 11 to match the regulations and the Guidelines and
delete the definition of ``dwelling unit, ground floor'' from Section
1102.
Comments
One commenter believed that an exception may be needed for dwelling
units in which the entry to the unit is on the ground floor, but the
living and sleeping areas are on the second floor, and that in such
case, the unit would not be required to meet the accessibility
requirements of the Act.
A group of commenters stated that the proposed IBC 2000 is intended
to be consistent with the Department's regulations and Guidelines,
which state that a building may have more than one ground floor or may
have ground floor dwelling units on different levels of a building.
However, this group noted that it is not unreasonable to consider
clarifying its intent by making it more evident in the code that there
can be more than one ground floor or ground floor units on different
levels of a building.
This group pointed out that any unit that meets the IBC's
definition of ``Dwelling unit, ground floor,'' is a ground floor unit,
regardless on which floor or level of the building it is located. The
IBC definition is:
Dwelling unit, ground floor--a dwelling unit with a primary entrance
and habitable space at grade.
The group added, however, that the Department's recommended
language is not consistent with the language and style that is
customary to building codes. The group concluded that the potential
confusion can be eliminated and the intent of the Act achieved by
requiring that at least one level containing dwelling units be provided
with an entrance from the exterior (and thus have Type B dwelling
units); and any other levels that have an entrance from the exterior
and contain dwelling units have Type B dwelling units. The group,
however, did not offer language to accomplish this recommendation.
Another commenter agreed that a definition of ``ground floor'' is
needed in Chapter 11, since the exceptions in 1107.5.4 use the term,
and it is not defined elsewhere in the code. This commenter also noted
that the IBC definition of ``Dwelling unit, ground floor'' does not
describe ground floor units that are on an accessible route that is
above grade.
This commenter suggested that some of the wording in the
Department's recommendation should be in the commentary section of the
code. The commenter suggested that the definition of ground floor be:
``Any floor of a building with an entrance on an accessible route.''
The commenter also stated that the provision in the Department's
recommendation that states: ``Where the first floor containing dwelling
units in a structure is above grade, all units on that floor shall be
served by an entrance on an accessible route,'' is a requirement, and
should not be buried in a definition. The commenter recommended adding
this language to the end of the charging paragraph of 1107.5.4, just
before the exceptions.
In addition, during the review of the public comments, two new
concerns arose: (1) whether or not the IBC scoping language, in
combination with the definition of ``dwelling unit, ground floor,''
makes it clear that there must be at least one ground floor in a
building, and (2) whether the language of Exception 2 of 1107.5.4
results in requiring builders to make the lowest floor of a building
containing dwelling units accessible even if it were more practical to
make a different floor (such as the second or third floor) containing
dwelling units accessible when that floor is closer to the grade, even
if not ``at grade.''
Response
The Department carefully considered all comments received on this
issue. The Department believes this is one of the more difficult issues
to address because the Act is a civil rights law, and the language of
the statute and the Department's regulations make it clear that covered
multifamily dwellings must be designed and constructed in a manner that
incorporates those features of accessible and adaptable design. The
Department's regulatory definition of ground floor is also clear that a
building may have one or more ground floors.
The Department is also mindful of the fact that the language in the
Department's definition of ground floor is not couched in building code
terminology. While some commenters offered alternative language, the
Department does not believe the alternative language offered addresses
the variances discussed above. Therefore, the Department is retaining
its finding that the proposed IBC 2000 language, and the comparable
language of the other three model codes, is not consistent with the
requirements of the 1988 Act. The Department maintains that the IBC is
not clear with respect to requiring additional ground floors to be
accessible, and that the scoping language and exception discussed above
creates another potential variance with respect to the fact that there
must be at least one ground floor (unless it is impractical as provided
in the Department's regulations and the Guidelines).
However, the Department is withdrawing its recommendation with
respect to the proposed IBC 2000 and the other model codes that also
contained a similar recommendation. The Department will work with the
model code organizations, and any other interested persons, to develop
alternative language that will address this issue to the Department's
satisfaction. In the meantime, builders, developers, owners, designers,
architects and others involved in the design and construction of
housing covered by the Act must apply the Department's definition of
``ground floor'' when making decisions about the applicability of the
accessibility requirements of the Act.
First Level of Living
In its draft report on the UBC, the Department concluded that the
language of Section 1103.1.9.3, Multi-unit dwellings, Exception 2, was
ambiguous and could be interpreted to exclude the first floor of
dwelling units in a building in which dwelling units are not on the
floor at grade. Draft Recommendation Number 5 of the UBC analysis
proposed to clear up the ambiguity by changing the language of Section
1103.1.9.3, as follows:
Where no elevator service is provided in a structure and a floor
at grade does not contain dwelling units, only those dwelling units
located on the first floor containing dwelling units of either Group
R, Division 1 apartment occupancies or Group R, Division 3
occupancies need comply with the requirements of this section.
Comments
A commenter that reviewed the draft report on the UBC commented
that Draft Recommendation Number 5 to the UBC did not sufficiently
clear up the ambiguity noted by the Department. This commenter
suggested revising the Recommendation to read: * * * only
[[Page 15749]]
those dwelling units located on the first floor containing dwelling
units above the floor at grade.''
Response
The Department has adopted the commenter's suggested language and
revised the applicable recommendation in the UBC draft report, as well
as in any other relevant model code report.
Definition of Building and Structure
In Draft Recommendation Number 5 to the IBC 2000 draft report, the
Department recommended that the proposed IBC 2000 Exceptions in Section
1107.5.4 be modified by eliminating any reference to the term
``building'' and replacing it with the term ``structure'' to ensure
that firewall criteria are eliminated for the purpose of scoping the
accessibility requirements for Type B dwelling units.
Comments
Several commenters opposed Draft Recommendation Number 5. One
commenter noted that replacing ``building'' with ``structure'' is
unnecessary and may have unintended consequences. Another commenter
believed that there is a better way of fixing the variance and proposed
modifying the definition of a Type B unit to say that dwelling units
separated by firewalls do not constitute separate buildings. A group of
commenters suggested that changing the term ``building'' to
``structure'' would mean that, in a newly-built project, if one
townhouse owner elected to have an elevator installed in his/her unit,
all other units would then have to be constructed with elevators. The
ICC also believed that changing ``building'' to ``structure'' could
actually reduce the number of units required to be accessible.
Response
After re-examining the proposed IBC 2000, the Department believes
that the proposed IBC 2000 is clear that dwelling units separated by
firewalls do not constitute separated buildings and that the suggested
revision to IBC is not needed. Thus, the Department has withdrawn this
recommendation from the Final Report on the proposed IBC 2000. The
Department also has made modifications to the reports on the other
model codes as appropriate.
Breezeways
The Department noted in its draft report in Draft Recommendation
Number 6 on the proposed IBC 2000 that in most cases two structures
that are connected by a breezeway or stairway and share the same roof
are considered one building. However, in cases where the breezeway or
stairway that structurally connects both buildings does not provide the
only means of egress and does not share the same roof as the two
structures, whether or not this is one building must be determined
under the IBC on a case by case basis. In addition, in some cases, the
IBC considers walkways, breezeways, and stairways accessory structures
and not integral to the building. If they are determined to be
accessory structures, each building that they connect is examined
separately. The Department, therefore, concluded that the IBC may not
meet the requirements of the Guidelines in terms of covered units
connected by breezeways or stairways, and recommended adding language
to Section 3104.2 to make it clear that for purposes of accessibility
under Chapter 11, buildings or structures structurally connected to
other buildings or structures by pedestrian walkways, breezeways, or
stairways shall be considered one structure.
Comments
A number of commenters thought that the Department's recommendation
was incorrect and impractical. They pointed out that the word
``structure'' includes sidewalks and utility lines that link single
family homes. Another pointed out that two unrelated buildings
separated by a distance of more than ``a few feet'' but connected by a
bridge could be considered to be a single building, when this may not
have been the Department's intent.
Response
The Department has carefully considered all of these comments, but
continues to believe that for purposes of calculating the total number
of dwelling units required to be Type B dwelling units, buildings that
are structurally connected and buildings with multiple wings are a
single building and must be treated as such. In addition, Section 3104
of the proposed IBC 2000 applies specifically to connections between
buildings such as pedestrian walkways or tunnels, located at, above, or
below grade level, that are used as a means of travel by persons. The
Department also disagrees with the conclusion that all of the
structures referenced by some of the commenters would come into
consideration, i.e., pipes, gas lines, telephone poles, etc. The
Department's recommendation specified what facilities would be deemed
as being connecting, that is, pedestrian walkways, breezeways, or
stairways.
On the other hand, the Department agrees with the concern that the
reference to Chapter 11 in its recommendation is too broad. The
Department notes that it did not intend to address two clearly separate
structures that are joined only by a walkway or a tunnel of
considerable distance. Therefore, the Department is revising its
recommendation to state that for purposes of calculating the number of
Type B dwelling units and Type B sleeping accommodations required by
Chapter 11, structurally connected buildings and buildings with
multiple wings shall be considered one structure. Similar modifications
are being made to the reports concerning the other model codes.
Multistory Units
The Department concluded that the proposed IBC 2000's definition of
``dwelling unit, multistory,'' which is a dwelling unit with habitable
or bathroom space located on more than one story, could result in a
unit being considered multistory if one level contains living or
``habitable'' space and the floor above or below contains only a
bathroom. Therefore, the Department recommended in Draft Recommendation
Number 7, that this definition be revised to delete the reference to
bathroom space.
Comments
One group of commenters agreed with the Department's recommended
definition of multistory units, but suggested that it be prefaced with
the statement, ``[f]or purposes of accessibility.'' Another commenter
disagreed with the Department's recommendation and believed that
bathroom space should be considered part of the living space.
Response
The Department disagrees with the contention that bathroom space is
living space. The Department believes that the inclusion of bathroom
space in the definition of ``Dwelling unit, multistory'' creates the
possibility that a dwelling unit designed with a small ``loft,'' or a
ground floor with an entry foyer and a bathroom would be treated as a
multistory dwelling unit and thereby not covered by the requirements of
the Act.
However, the Department agrees with the suggestion that the
language be prefaced, ``For purposes of accessibility,'' and has
revised the recommendation accordingly in the report on the proposed
IBC 2000 and all other model code reports that discuss this issue.
[[Page 15750]]
Site Impracticality
In its draft report on the proposed IBC 2000, and in other model
code reports, the Department noted that the model code language
describing site impracticality due to site terrain, using the site
analysis test set forth in the Guidelines, did not include language
clarifying that all ground floor units in buildings with a common
entrance, or ground floor units served by a particular entrance, must
be made accessible if the entrance to the units is on an accessible
route. The reports also pointed out that the codes did not use the term
``less than 10%'' in the test. The reports also found that the model
codes did not meet the provisions of the Guidelines because they failed
to include language that, regardless of site considerations, an
accessible entrance served by an accessible route is practical whenever
an elevator connects parking with a ground floor, in which case all
ground floor units are covered, or whenever an elevated walk with a
slope no greater than 10% is planned between an entrance and a
pedestrian or vehicular arrival point. The Department made several
recommendations to address these inconsistencies under Draft
Recommendation Number 8.
Comments
One commenter, in its review of the draft report on the UBC, agreed
with the general intent of the recommendation, but thought that the use
of the term ``walkway'' implies something actually constructed, and the
Department should substitute the term ``accessible route''. The
commenter stated that it had encountered a situation where the slope
between a planned entrance and a vehicular or pedestrian arrival point
was less than 8.33% but there was no ``walkway'' connecting the
entrance and arrival point. The commenter discussed a specific
situation where a development had been constructed on a steep site but
all buildings on top of the site were on a completely flat area.
However, there was always at least one step between the parking lot and
each unit, and consequently there was no accessible route between the
unit entrance and the parking lot. The commenter asked whether a
builder could calculate the number of units that had to comply with the
Act based on the total buildable area that has an existing natural
grade of less than 10% slope only, excluding dwelling units that have a
grade of less than 10% slope but lack an accessible route because of
the imposition of a step along the route from the entrance to the
planned arrival point.
Another commenter agreed with the strategy to incorporate an
elevated walkway concept into the site analysis test. A group of
commenters agreed with our recommendation with respect to the proposed
IBC 2000, but restated the recommendation in code language and format.
Response
The Department believes that it is clear from the language of the
regulations, and the language of the Guidelines, that the site
impracticality exception cannot be applied to instances in which the
lack of an accessible route is due to manmade barriers, such as the
failure to provide a walkway or the construction of a step. The
language of Exception 4, Section 1103.1.9.3 of the UBC refers to
measurement of the slope of grades prior to development. The Department
believes that this language adequately addresses the commenter's
concern.
The Department has reviewed proposed language submitted by the ICC
to address these issues, and has adopted these recommendations, with
some modifications, in the Final Report on the proposed IBC 2000 as
well as in the other model code reports. The Department believes these
revisions also help to address the concerns raised by the commenter on
the UBC.
Application of the Site Impracticality Test to Buildings With
Elevators
The Department found that the language of the model codes did not
adequately clarify that buildings with elevators must provide an
accessible entrance on an accessible route regardless of site
impracticality. The Department recommended language that addressed this
variance, in Recommendation Number 9 of the proposed IBC 2000 and
comparable recommendations in the reports on the other model codes.
The only comments received on this recommendation endorsed it. The
Department's recommendation remains unchanged in the model code
reports.
Sites With Unusual Characteristics
In Draft Recommendation Number 10 on the proposed IBC 2000, and in
comparable recommendations in the other model code reports, the
Department addressed its concern that the model code language
describing the site impracticality test for sites with unusual
characteristics did not contain the provision that an accessible
entrance on an accessible route is impractical when the unusual site
characteristics result in a difference in finished grade elevation
exceeding 30 inches AND 10 percent, measured between an entrance and
ALL vehicular or pedestrian arrival points within 50 feet of the
planned entrance, and if none, then between the closest vehicular or
pedestrian arrival points. The Department believed that the omission of
the words ``AND'' and ``ALL'' constituted a variance with the
provisions of the Guidelines.
Comments
The only two organizations to comment on this recommendation agreed
with the recommendation. However, one of the commenters pointed out
that the term ``all'' is implied based on the construction of building
code language, and therefore is unnecessary.
Response
The Department agrees with the commenter on this point and has
revised its recommendation in all of the model code reports
accordingly, while retaining its recommendation related to substitution
of ``and'' for ``or.''
Vehicular Route as an Alternative to an Accessible Pedestrian Route
Proposed IBC 2000 Section 1107.5.5, and comparable sections of the
other model codes, contain an Exception that is similar to the
provision in the Guidelines that permits a vehicular route as an
alternative to an accessible pedestrian route under certain
circumstances. That Exception states:
If the slope of the finished ground level between accessible
facilities and buildings exceeds one unit vertical in 12 units
horizontal, or where physical barriers prevent the installation of
an accessible route, a vehicular route with parking at each
accessible facility or building is permitted in place of the
accessible route.
The Department concluded that the IBC does not include language
making it clear that accessible parking and curb ramps must be
available at each public or common use facility to which access is
provided by a vehicular route.
Comments
According to one group of commenters, Recommendation Number 11 is
not needed. This group believed that the IBC's current reference to
``parking'' under Exception 1 to Section 1107.5.5 is adequate. The
group believed that there is no need to insert the term ``accessible''
before the term ``parking'' and the terms ``spaces and curb ramps''
after the term ``parking'' because it may create an ``undesirable
restriction of configurations''. The group referred to Section 1106,
which regulates parking and requires a certain percentage of parking
spaces to be
[[Page 15751]]
accessible, and 1106.5, which requires accessible parking spaces to be
located on the shortest accessible route to an accessible entrance. The
group indicated that curb ramps are needed only where curbs are
provided. It stated that ANSI requires curb ramps to be provided where
accessible routes cross curbs and that this is adequate.
This group of commenters further indicated that, in some cases, not
all public and common use facilities are required to be accessible.
They stated that the Department's recommendation would require
accessible parking at non-accessible facilities. They indicated that
inserting the terms ``public or common use'' in the Department's
recommendation is not necessary because the charging paragraph applies
to ``exterior and interior spaces and facilities'' that serve the
accessible dwelling unit which includes the ``public and common use''
spaces.
Another commenter agreed with our recommendation and believes it
adds clarity to the code.
Response
The Department agrees that the language of IBC Section 1107.5.5,
together with the language of Section 1106, incorporate the technical
requirements associated with the vehicular route exception. For
purposes of clarity, the Department recommends that the language of the
Exception to IBC Section 1107.5.5 be modified to add a reference to
Section 1106. Similar revisions have been made to the other model code
reports.
Subsection 1(d) of the section of Requirement 2 of the Guidelines
that addresses accessible routes states: ``Where site or legal
constraints prevent a route accessible to wheelchair users between
covered multifamily dwellings and public or common use facilities
elsewhere on the site, an acceptable alternative is the provision of
access via a vehicular route so long as there is accessible parking on
an accessible route to at least 2% of covered dwelling units, and
necessary site provisions such as parking and curb cuts are available
at the public or common use facility.'' This language does not limit
the requirement to provide accessible parking to accessible facilities.
Similarly, subsection 4 of Requirement 2 of the Guidelines provides
that, if provided at the site, there must be accessible parking at
facilities that serve accessible buildings. The Department is not
implying in this recommendation that each public or common use facility
on a site must be accessible.
Headroom
In its draft report on the proposed IBC 2000, and in other model
code reports, the Department noted that the code apparently did not
include headroom requirements in its technical provisions for
accessible routes. However, the IBC 2000 does include headroom
requirements in the provisions for protruding objects. In Draft
Recommendation Number 12 in the proposed IBC 2000, and in the other
draft reports, the Department recommended a revision to the code
language regarding accessible route.
Comments
While one commentator agreed with our recommendation, another
pointed out that the IBC's requirement included all ``circulation
paths'' and not just the means of egress as would the Department's
recommendation.
Response
The Department has concluded that it is appropriate to delete Draft
Recommendation Number 12 in the proposed IBC 2000 Final Report and in
the other model code reports because similar language in the code
addresses the Department's concerns.
Stairs
In its draft report on the proposed IBC 2000, and other model
codes, the Department expressed concern that the requirements related
to the accessibility provisions for stairs, because they were found in
Chapter 10, Means of Egress, did not necessarily apply to stairs that
connect levels not connected by an elevator if they are not part of a
means of egress. The Guidelines state that accessibility should be
provided on stairs located along routes connecting levels not connected
by an elevator. For example, a ground floor entry might have steps up
to a bank of mailboxes, with a ramp located beside the steps. In Draft
Recommendation Number 13 to the proposed IBC 2000, and in comparable
sections of the reports on other model codes, the Department proposed
revised language to the codes addressing this issue.
Comments
Commenters suggested that accessible stair design should reference
IBC Chapter 10 instead of the ICC/ANSI A117.1-1998 and that the
Department's requirement would actually allow non-complying stairs
where the two levels are served by an elevator. One organization
commented that: ``The IBC requires all stairs on a means of egress
(except those within a dwelling unit) to meet requirements conforming
to ICC/ANSI A117.1-1998. Essentially, all stairs except those in a
dwelling unit will comply, and dwelling units with stairs will
inevitably be multistory and therefore not covered by the requirements
of the Act. The SWA proposal would actually reduce compliance by
allowing levels served by elevators to be served by non-complying
stairs. At any rate, the proposed change to Section 1108 would be
overridden by the `mainstreamed' requirements found in IBC Chapter
10.'' Another commenter stated: ``We agree with the intent and
recommendation, but think that to avoid inconsistency, the reference
should be to Section 1003.3.3 in IBC chapter 10, rather than to ICC/
ANSI A117.1-1998.''
One group of commenters conceded that there were a few differences
between the stairway requirements in the IBC 2000 and those in the ICC/
ANSI A117.1. They also pointed out a recommended editorial revision to
the reference to stairs along accessible routes connecting floor levels
that are not connected by an elevator.
Response
The Department concurs with the group of commenters' editorial
recommendation, and also concurs with the group of commenters that
there are slight differences in the technical requirements for stairs
in Chapter 10 from those in the ICC/ANSI A117.1-1998. There also appear
to be some differences in the scoping provisions. For these reasons,
the Department has modified its recommendation to address part of the
group of commenters' recommendation but maintains its position
regarding referencing of ICC/ANSI A117.1-1998.
Parking and Passenger Loading Zones
Section 1106 of the proposed IBC 2000 contains the scoping and
technical criteria for parking and passenger loading zones. In its
review of Section 1106, the Department noted few variances with the
requirements of the Act. However, the Department did note variances
with respect to several of the Guidelines' provisions for accessible
parking, including: (1) Technical criteria to address accessibility of
public and common use type single-car parking garages when such garages
are made available for assignment or rental, (2) scoping requirements
to assure that accessible parking is provided on the same terms and
with the full range of choices as those provided to other residents,
(3) if visitor parking is provided, accessible visitor parking
sufficient to provide access to grade level entrances of covered
multifamily dwellings, and (4) where parking is
[[Page 15752]]
provided at facilities, accessible parking.
In Draft Recommendation Number 14 on the proposed IBC 2000, the
Department made recommendations to address these identified variances.
Comments
The Department received a number of comments on this section of its
draft report. One commenter stated that including garage provisions
from the Questions and Answers About the Guidelines in our
recommendation is not appropriate because they are not part of the
Guidelines. This commenter also observed that the IBC applies the 2%
rule to all the parking at the site and not just to the parking serving
covered units; that accessible ``visitor'' parking is difficult to
enforce unless there is a clear separation between parking for
residents and parking for visitors; and that the parking provisions in
the IBC are based on ``where provided'' because local zoning codes, not
building codes, require parking. Commenters also stated that the term
``sufficient'' in HUD's recommendation may be less than required by IBC
and the ADA Standards when parking also serves a public accommodation.
The term ``sufficient'' also captures parking serving other use groups,
shops on a ground floor, for example. The term ``sufficient'' is a
problem because it is not building code terminology.
In addition, the commenters opined that HUD's recommendation is
based on a false assumption that all types of parking are available to
all residents. One group of commenters noted that the Act does not
require parking where none is intended.
Another commenter stated that the parking requirements of the codes
are conflicting. For example, the UBC requirement for accessible
parking exceeds that of the FHA. One commenter stated that HUD should
not accept any standard that does not specify that accessible parking
must be close to an accessible entrance. The commenter noted that the
1986 version of ANSI A117.1 contained a provision that accessible
parking spaces shall be located on the shortest possible accessible
circulation route to an accessible entrance of the building. The
commenter noted that this standard had been eliminated from the CABO
ANSI A117.1-1992.
Response
The Guidelines provide:
If provided at the site, designated accessible parking at the
dwelling unit on request of residents with handicaps, on the same
terms and with the full range of choices (e.g., surface parking or
garage) that are provided for other residents of the project, with
accessible parking on a route accessible to wheelchairs for at least
2% of the covered dwelling units; accessible visitor parking
sufficient to provide access to grade-level entrances of covered
multifamily dwellings; and accessible parking at facilities (e.g.,
swimming pools) that serve accessible buildings.
In addition to the above provisions of the Guidelines, the
Questions and Answers About the Guidelines provide additional guidance
on the requirements for parking related to technical criteria for
accessible public and common use type single-car garages, and
application of the 2% requirement when there is more than one type of
parking. The Questions and Answers are a supplement to the Guidelines
and the Department treats them as further interpretation of the
Guidelines.
The Department has considered all of these comments, and made some
revisions in its recommendations. The Department's identified variances
are not intended to recommend that IBC or any of the other model codes
revise any scoping requirements that are broader than those in the
Guidelines. However, the Department continues to believe that those
scoping provisions identified as variances are not consistent with the
language in the Guidelines, and is maintaining these identified
variances. The Department further notes, however, with respect to
accessibility of public and common use single-car parking garages, that
there may be other technical criteria that the codes could adopt that
will constitute accessibility of such garages, such as by applying the
accessibility requirements for van accessible parking spaces to the
interiors of such garages, and providing another means of egress from
the garage that connects to the accessible route and the entrances of
covered dwelling units. The Department's recommendation is not intended
to preclude the code organizations from developing alternative language
to address this inconsistency. The Department is also willing to work
with the code organizations and any other interested persons in
developing language to address these variances. The Department is also
clarifying the use of the term ``sufficient'' in its final
recommendations.
The ANSI A117 Committee made a specific effort to remove all
scoping language from the CABO/ANSI A117.1-1992. Similarly, ICC/ANSI
A117.1-1998 removed scoping provisions. The requirement that accessible
parking be located on the shortest possible route to an accessible
building entrance is a scoping provision. All of the model building
codes include this requirement in their code language.
Accessible Facilities/Recreational Facilities
In its review of the model codes, the Department did not identify
any variances related to the number of accessible recreational
facilities that must be provided at a site.
Comments
One commenter, reviewing the draft report on the UBC, commented
that the Guidelines state that: ``Where multiple recreational
facilities, (e.g., tennis courts) are provided sufficient accessible
facilities of each type should be provided to assure equal opportunity
for use by persons with disabilities.'' However, Section 1103.9.1.1 of
the UBC requires that at least 25%, but not less than one, of each type
of each group of facilities be accessible. This provision also is found
in the other model codes.
Response
The Department recognizes that the UBC's language in Section
1103.9.1.1 and equivalent language in other model codes differ from the
provisions of the Guidelines. The Guidelines state that ``[w]here
multiple recreational facilities (e.g., tennis courts) are provided,
sufficient accessible facilities of each type to assure equitable
opportunity for use by persons with handicaps.'' As discussed in the
preamble to the final Guidelines, several persons who were commenting
on the Department's proposed Guidelines, suggested that the Department
adopt the standard that is reflected in the model codes--a minimum of
25% (or at least one) of each type of recreational facility. The
Department decided to retain the more flexible approach that the
requirements of 24 CFR 100.205(c)(1) are met if ``sufficient''
accessible facilities are provided.
In many instances, compliance with the scoping requirement under
the model codes for the provision of accessible recreational facilities
when there are multiple recreational facilities of the same type on a
site will constitute compliance with the Guidelines' provision for
``sufficient accessible facilities to assure equitable opportunity for
use * * *''. However, there may be instances when, using the model code
formula, there are not sufficient accessible recreational facilities to
serve the accessible units at a site. Therefore, the Department has
added a finding that the model codes that have expressed this formula
do not comply with the provisions of the Guidelines. However,
[[Page 15753]]
because this matter was not included in the draft reports, and there
has not been an opportunity for public participation in a resolution of
this matter, the Department is not including a recommendation to
resolve this matter. The Department will work with all interested
parties to address this matter.
Multistory Units Served by Elevators
The Department noted that the IBC does not state that where a
multistory dwelling unit is provided with elevator service to only one
floor, the story served by the elevator must be the primary entry to
the unit. The Department recommended a change to Section 1107.5.4,
Exception 3, to address this issue.
Comments
A group of commenters agreed that there is a need to clarify that
the primary entrance be on the floor of elevator service where the
elevator only serves one floor of a multistory unit. Another commenter
agreed with Recommendation 15. One commenter seemed to interpret this
recommendation to be saying that once an elevator is installed in one
multistory unit, this would somehow require other units in a townhouse
development to be required to be accessible.
Response
The Department's Draft Recommendation Number 15 was intended to
address a concern with the language of Exception 3 to Section 1107.5.4
of the proposed IBC 2000, which the Department interprets to be
addressing situations in which a multistory unit is located in a
building that has one or more elevators, such as a mid-rise building
where the top floor consists of multistory rather than single-story
apartments. The Department's recommendation is not intended to require,
with respect to a non-elevator building consisting of a row of
multistory townhouses, that if one such townhouse is designed and
constructed with an elevator, all other multistory units in that
building must include an elevator. The Department discussed this issue
in the preamble to its regulations, and concluded the multistory
townhouses are not covered unless they have elevators. Thus, only the
unit that is designed and constructed with an elevator, in a building
of four or more dwelling units, would be covered. Therefore, the
Department's recommendation on this issue remains the same.
Accessible Route and Special Design Features
The Department identified only one variance concerning the UBC
language related to Requirement 4 of the Guidelines, Accessible route
into and through the covered dwelling unit. That variance dealt with
multistory dwelling units in elevator buildings, discussed above.
Comments
One commenter pointed out that the Guidelines state that where a
covered dwelling unit has special design features, such as a raised or
sunken living room, these areas must not interrupt the accessible route
through the remainder of the dwelling unit. The commenter additionally
noted that the Design Manual clarified that only one of these special
design features is allowed and that no part of the kitchen or bathroom
may be located in a raised or sunken area. The commenter believes that
the UBC does not sufficiently address these limitations on the use of
special design features.
Response
The charging paragraph of UBC Section 1106.2.1 states: ``At least
one accessible route complying with this section shall connect all
spaces and elements that are a part of the dwelling unit. Where only
one accessible route is provided, it shall not pass through bathrooms,
closets or similar spaces.'' The Exception to that paragraph is that
only one of either a sunken or raised living, dining, or sleeping room,
or a mezzanine that does not have plumbing fixtures or enclosed
habitable space is allowed. The Department believes that the language
of Section 1106.2.1 is sufficiently clear and means that special design
features may not interrupt an accessible route and that bathroom or
kitchen space may not be located in a special design feature.
Chapter 2: Policy Statement
Introduction
This policy statement provides information on the design and
construction requirements of the Fair Housing Act (the Act) with regard
to new construction of residential housing built for first occupancy
after March 13, 1991, and the U.S. Department of Housing and Urban
Development's (HUD or the Department) administration and enforcement of
these requirements. The policy statement, together with the Final
Report of HUD Review of Model Building Codes (Final Report), provide
technical assistance to building code organizations and officials
regarding the accessibility provisions of four model building codes and
identify variances between the model building codes and the
requirements of the Act, the Department's implementing regulations at
24 CFR Part 14 et al. (the regulations), and the Fair Housing
Accessibility Guidelines (the Guidelines).
This policy statement and the Final Report also provide guidance on
the Department's policy concerning the relationship between the
requirements of the Act and its enforcement by the Department and the
model building codes and other accessibility laws and standards.
Further, this policy statement and Final Report responds to the
House of Representatives Committee on Appropriations directive to HUD
to complete its review of a matrix submitted by building and code
organizations that compared the Guidelines with the accessibility
provisions in the model building codes and to issue a policy statement
by December 31, 1999. H.R. Rep. No. 298, 106th Cong., 1st Sess. 34
(1999).
Background
The Fair Housing Act mandates that all covered multifamily
dwellings designed and constructed for first occupancy after March 13,
1991, must contain specified features of accessible and adaptable
design. 42 U.S.C. 3604(f)(3)(C). In 1989, the Department issued its
regulations implementing the Act's design and construction
requirements. 24 CFR 100.205. Both the Act and the regulations state
that compliance with the appropriate requirements of the American
National Standards Institute (ANSI) A117.1 standard suffices to satisfy
the Act's accessibility requirements. (The Act uses the term
``handicap,'' however, in keeping with preferred terminology
established in the Americans with Disabilities Act of 1990, this policy
statement and Final Report uses the terms ``persons with
disabilities,'' ``disability,'' or ``disabled.'')
On March 6, 1991, after consideration of extensive public comment
from architects, developers, builders, persons with disabilities, and
other interested groups, the Department published the ``Fair Housing
Accessibility Guidelines,'' which set forth specific guidelines for
designing dwelling units consistent with the Act. 56 FR 9472-9515. In
keeping with the Act and the regulations, the Guidelines are largely
based on the ANSI A117.1 standard.
In 1992, the Department was contacted by the Council of American
Building Officials (CABO), and the model building code organizations.
[[Page 15754]]
CABO advised the Department of its interest in drafting building code
language that would reflect the design and construction requirements of
the Act, and asked the Department to provide technical assistance to
its Board for Coordination of Model Codes (BCMC) in this regard. The
Department recognized that incorporation of building code requirements
that are consistent with the Act's requirements would provide an
increased measure of compliance. Therefore, in support of this effort,
the Department agreed to provide technical assistance to BCMC and the
building industry organizations, and did so during 1992 and 1993. The
model building code organizations subsequently incorporated the results
of their efforts into the model building codes.
The American National Standards Institute (ANSI) is responsible for
establishing technical standards in many different areas. Among the
standards addressed by the ANSI, through the A117 Committee, are
technical standards for the design of housing and facilities that are
accessible to persons with disabilities. BCMC recommended that the ANSI
A117 Committee set up a Residential Task Force to develop technical
criteria to address the Act's accessibility requirements. The
Department is a member of the ANSI A117 Committee, and was asked to
appoint representatives to serve on the Residential Task Force. The
technical criteria developed by the ANSI Residential Task Force were
included in the ICC/ANSI A117.1-1998. (The reference to ICC,
International Code Council, reflects an organizational change in the
ANSI only.)
Since 1961, ANSI A117.1 has been the accessibility standard used by
the private industry, and, since 1980, has included technical criteria
for fully accessible dwelling units. The 1998 ICC/ANSI A117.1 calls
these fully accessible dwelling units ``Type A dwelling units.'' The
requirements for Type A dwelling units are found at Section 1002 of
ICC/ANSI A117.1-1998. The 1998 ANSI also contains technical criteria
for a ``Type B dwelling unit.'' These criteria are found at Section
1003 of ICC/ANSI A117.1-1998 and are intended to reflect the technical
requirements for dwelling units required to be accessible by the Act.
Note, however, that the Act does not require that developers build new
construction to the Type A standard in order to meet the requirements
of the Act, although a Type A unit will satisfy the Act's requirements.
In 1997, CABO, three model building code organizations and several
building industry organizations contacted the Department to discuss,
among other items, the importance of assuring that the design and
construction requirements of the Act were accurately reflected in the
three model building codes and in the draft International Building Code
(IBC), which was scheduled for completion in 2000. The Department met
with representatives of these groups along with representatives of
disability advocacy organizations and indicated its willingness to
review these model building codes for consistency with the requirements
of the Act, the regulations, and the Guidelines, and then convene a
public meeting at a later date to share the results of that review.
In late December 1997, CABO submitted to the Department a matrix
that compared model four building codes to the Fair Housing Act's
design and construction requirements. In the fall of 1998, the
Department awarded a contract to Steven Winter Associates, Inc., (SWA)
to analyze the matrix and the model building codes and to identify
those sections of the codes which did not meet the requirements of the
Act, the regulations, and the Guidelines. The Department also requested
that SWA draft recommendations on how each identified variance could be
corrected in order to conform with the Act, the regulations, and the
Guidelines. The four model building codes are as follows:
National Model Building Codes
National Building Code, Building Officials and Code Administrators
International (BOCA), 1996 edition
Uniform Building Code, International Conference of Building
Officials (ICBO), 1997 edition
Standard Building Code, Southern Building Code Congress
International (SBCCI), 1997 edition
International Building Code
International Building Code, (First Draft) International Code Council
(ICC) November 1997
Although the original matrix focused on the 1997 First Draft of the
International Building Code (IBC), because the IBC had progressed to a
proposed IBC 2000, the ICC asked the Department to include in its
review, to the greatest extent possible, the proposed IBC 2000 and the
new 1999 edition of the National Building Code published by BOCA. The
Department agreed to undertake a limited review of the proposed IBC
2000, but due to time constraints, was unable to review the 1999 BOCA.
To facilitate review of portions of the proposed IBC 2000, BOCA
prepared an update to the December, 1997 matrix that compared the
Guidelines with the First Draft IBC, and the proposed IBC 2000. In
addition, the Department was provided with copies of Chapters 10 and
11, Appendix to Chapter 11, Section 3407, and Appendix 34-2 of the
proposed IBC 2000.
The Department formed a Model Code Working Group (Working Group) to
work with its contractor on the review of the model building codes. The
Working Group consisted of staff from the Office of Fair Housing and
Equal Opportunity, the Office of General Counsel, and the Office of
Housing. A representative of the U.S. Department of Justice (DOJ) also
participated in the Working Group.
The Department published a draft report and policy statement on
October 26, 1999. On November 10, 1999, the Department convened a
public meeting to listen to comments on the draft report. The
Department solicited written comments as well. The Department carefully
considered all of the comments it received and has made revisions
accordingly so that the policy statement and Final Report reflects the
public comments.
The Final Report consists of an Introduction (preamble), this
policy statement, and four reports on the model building codes. The
four model building code reports were prepared by SWA and have been
reviewed and adopted by the Department.
The Final Report serves solely to respond to CABO's request for
technical assistance and to provide technical assistance to other
interested parties on this issue. The Department has not and does not
intend to promulgate any new technical requirements or standards by way
of this Final Report. The Department does not intend this Final Report
to be considered an endorsement of any model building code.
The Department is not attempting through the issuance of this Final
Report to shift its responsibility to enforce the design and
construction requirements of the Act to any model code organization or
to state and local building code officials. However, the Department
recognizes that an important way to increase compliance with the design
and construction requirements of the Act is to incorporate those
requirements into state and local building codes.
[[Page 15755]]
History of Fair Housing Act Design and Construction Requirements
In 1988, Congress extended the protections of the Fair Housing Act,
42 U.S.C. 3601 et seq., the nation's primary housing civil rights law,
to families with children and to persons with disabilities. 42 U.S.C.
3604. In response to the serious lack of accessible housing in the
United States, Congress provided that all covered multifamily dwellings
built for first occupancy after March 13, 1991, include certain basic
features of accessible and adaptive design. 42 U.S.C. 3604(f)(3)(C).
These basic accessibility requirements are known as the Act's design
and construction requirements.
The Act mandates that all covered multifamily dwellings built for
first occupancy after March 13, 1991, shall be designed and constructed
so that:
(1) The public and common use areas are readily accessible to and
usable by persons with disabilities;
(2) All doors designed to allow passage into and within all
premises in covered dwellings are sufficiently wide to allow passage by
persons using wheelchairs;
(3) All premises within dwellings contain the following features of
adaptive design:
(a) An accessible route into and through the dwelling;
(b) Light switches, electrical outlets, thermostats and other
environmental controls in accessible locations;
(c) Reinforcements in bathroom walls to allow later installation of
grab bars; and
(d) Usable kitchens and bathroom such that an individual using a
wheelchair can maneuver about the space.
42 U.S.C. 3604(f)(3)(C). These provisions were incorporated in the
Department's Fair Housing Accessibility Guidelines as seven
requirements. The underlying concept behind the design and construction
requirements is to create housing that is accessible for persons with
disabilities but which does not necessarily appear to be different from
conventional housing.
The Act's design and construction requirements apply to ``covered
multifamily dwellings,'' which are buildings consisting of 4 or more
units if such buildings have one or more elevators; and ground floor
units in other buildings consisting of 4 or more units. The terms
``dwelling unit,'' ``ground floor,'' and ``building'' all have
particular meanings that are set forth in the Act, the regulations, and
the Guidelines. The Act's design and construction requirements apply to
all covered multifamily dwellings built for first occupancy after March
13, 1991. The Act's design and construction requirements do not apply
to alterations or renovations to multifamily dwelling units or to
single-family detached houses.
The Act does not set forth specific technical design criteria that
builders have to follow in order to comply with the design and
construction requirements. It does provide, however, that compliance
with the appropriate requirements of the American National Standard
Accessible and Usable Buildings and Facilities (commonly referred to as
ANSI A117.1) would satisfy the Act's design and construction
requirements for the interiors of dwelling units. 42 U.S.C. 3604(f)(4).
In the Department's 1989 regulations implementing the design and
construction requirements of the Fair Housing Act, the Department
specifically stated that compliance with the appropriate requirements
of ANSI A117.1-1986 suffices to satisfy the requirements of the Act
relating to interiors of dwelling units. 24 CFR 100.205(e). The
Department also references ANSI A117.1-1986 for the public and common
use areas, in its definition of ``accessible.'' At the time Congress
passed the Act, and the Department promulgated its regulations, the
current version of ANSI A117.1 was the 1986 edition.
The Act emphasizes that Congress did not intend the Department to
require states and units of local government to include the Act's
accessibility requirements in their state and local procedures for the
review and approval of newly constructed covered multifamily dwellings.
However, Congress authorized the Department to encourage the inclusion
of these requirements into their procedures. 42 U.S.C. 3604(f)(5)(C).
The Act makes it clear that it does not invalidate or limit any
other state or federal laws that require dwellings to be designed or
constructed in a manner that affords persons with disabilities greater
access than that required under the Act. 42 U.S.C. 3604(f)(8).
Congress charged the Secretary of HUD to ``provide technical
assistance to states and units of local government and other persons to
implement the requirements of paragraph 3(C) [setting forth the design
and construction requirements].'' 42 U.S.C. 3604(f)(5)(C). To this end,
in order to properly meet this obligation, on March 6, 1991, the
Department published the ``Fair Housing Accessibility Guidelines,''
(the Guidelines) published at 56 FR 9472-9515, which set forth specific
guidelines for designing dwelling units consistent with the Fair
Housing Act. On June 24, 1994, the Department published its
``Supplement to Notice of Fair Housing Accessibility Guidelines:
Questions and Answers About the Guidelines,'' published at 59 FR 33362-
33368 (the Questions and Answers About the Guidelines).
Section I of the Guidelines states:
These guidelines are not mandatory, nor do they prescribe
specific requirements which must be met, and which, if not met,
would constitute unlawful discrimination under the Fair Housing Act.
Builders and developers may choose to depart from these guidelines
and seek alternate ways to demonstrate that they have met the
requirements of the Fair Housing Act. These guidelines are intended
to provide a safe harbor for compliance with the accessibility
requirements of the Fair Housing Act. 56 FR at 9499.
The Department also published a Fair Housing Act Design Manual
(Design Manual). In addition to describing the design and construction
requirements of the Act, the Design Manual provides further technical
guidance of a practical nature on the application of the Guidelines.
The Design Manual also serves as a safe harbor for compliance.
CABO/ANSI A117.1-1992 and ICC/ANSI A117.1-1998 as Safe Harbors
Through its review of the SWA draft reports, the Department
reviewed the technical standards in the CABO/ANSI A117.1-1992 and the
ICC/ANSI A117.1-1998, particularly the latter's technical standards for
the interiors of dwelling units, called Type B dwelling units, to
determine whether these later editions of ANSI meet the requirements of
the Act, the Guidelines, and the 1986 edition of ANSI A117.1. The 1992
and 1998 editions of ANSI A117.1 have been adopted by several of the
model building code associations. Mindful of the language of the Act,
and having now reviewed those technical standards, the Department
believes that CABO/ANSI A117.1-1992 and ICC/ANSI A117.1-1998 are
consistent with the Act and are additional safe harbors for compliance
with the Act's technical accessibility requirements. Therefore, the
Department will soon be publishing an interim rule amending certain
sections of 24 CFR 100.200, to state that compliance with the
appropriate requirements of ICC/ANSI A117.1-1998, ANSI A117.1-1986, and
CABO/ANSI A117.1-1992 suffices to satisfy the requirements of the Act
related to interiors of dwelling units and public and common use areas.
Additionally, the Department maintains its position that compliance
with its Fair Housing
[[Page 15756]]
Accessibility Guidelines also constitutes compliance with the Act. The
Design Manual also serves as a safe harbor for compliance.
It is important to note that ANSI A117.1 contains only technical
criteria, whereas the Fair Housing Act, the implementing regulations,
and the Guidelines contain both ``scoping'' and technical criteria.
Scoping criteria define when a building element or space must be
accessible; technical criteria provide the technical specifications on
how to make an element accessible. Therefore, designers and builders
relying on ANSI A117.1 also need to consult the Act and the
Department's regulations, or the Guidelines for the scoping criteria.
As a further note, the Department wishes to emphasize that the safe
harbors for compliance outlined above apply only to the accessibility
requirements of the Fair Housing Act, and do not constitute a safe
harbor for compliance for Federally funded facilities and dwelling
units covered by Section 504 of the Rehabilitation Act of 1973 (Section
504), 29 U.S.C. 794(a); 24 CFR 8 and 9; the Architectural Barriers Act
of 1968 (ABA), 42 U.S.C. 4151-4157; 24 CFR 40 and 41, which must comply
with their respective regulatory requirements, including the Uniform
Federal Accessibility Standard (UFAS); and the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. 12101-12213. However, to the
extent that the requirements of the Fair Housing Act overlaps with the
requirements of Section 504, the ABA, or the ADA, it is necessary to
read the laws together and meet the requirements of all applicable
laws.
Enforcement of the Fair Housing Act Design and Construction
Requirements Where a State Has Adopted a Building Code That
Conforms to the Act
The Act makes it clear that while state and local building code
officials are responsible for enforcing the building code standards
adopted in their respective jurisdictions, 42 U.S.C. 3604 (f)(5)(B); 24
CFR 100.205(g), the Department is responsible for enforcing the design
and construction requirements of the Fair Housing Act. 42 U.S.C.
3604(f)(6)(A), 3610. If a jurisdiction adopts a model building code
that HUD has determined conforms with the design and construction
requirements of the Act, then covered residential buildings that are
constructed in accordance with plans and specifications approved during
the building permitting process will be in compliance with the
requirements of the Act, unless the building code official has waived
one or more of those requirements, or the building code official has
incorrectly interpreted or applied the building code provisions.
However, the fact that a jurisdiction has adopted a code that
conforms with the accessibility requirements of the Act, or that
construction of a residential building was approved under a code, does
not change the Department's statutory responsibility to conduct an
investigation based on receipt of a complaint from an aggrieved person
to determine whether the requirements of the Act have been met. 42
U.S.C. 3604(f)(6)(A); 24 CFR 100.205(h). Section 804 of the Act
provides that: ``determinations by a State or unit of general local
government under paragraphs 5(A) and (B) shall not be conclusive in
enforcement proceedings under this title.'' 42 U.S.C. 3604(f)(6)(B).
Fair Housing Act Procedures When a Design and Construction
Complaint is Filed
The Department is required to conduct investigations of housing
discrimination in response to a complaint filed with the Department. 42
U.S.C. 3610; 24 CFR 103.200. Discrimination complaints may be filed by
an individual or organization that is an ``aggrieved person'' under the
Act. 42 U.S.C. 3602(i)-(j); 24 CFR 103.15. A discrimination complaint
may also be filed by the Secretary or his designee, the Assistant
Secretary for Fair Housing and Equal Opportunity. 42 U.S.C. 3610(a); 24
CFR 103.15.
When a complaint is filed with the Department, all of the parties
to a complaint are notified of its receipt. 42 U.S.C.
3610(a)(1)(B)(i)(ii); 24 CFR 103.45 and 103.50. The Department then
conducts an investigation to determine whether there is reasonable
cause to believe that the allegations in the complaint are true. 42
U.S.C. 3610(a)(1(B)(iv); 24 CFR 103.200. The Department also attempts
to resolve housing discrimination complaints through conciliation. 42
U.S.C. 3610(b)(1); 24 CFR 103.300. If the Department finds that there
is reasonable cause to believe that the allegations of unlawful
discrimination are true, and attempts to resolve the complaint through
conciliation have failed, then the Department issues a charge of
discrimination. 42 U.S.C. 3610(g)(1)-(2); 24 CFR 103.400(a)(2). The
parties then have the right to elect to pursue litigation through the
Department's administrative adjudicative process or in federal district
court. 42 U.S.C. 3612(a); 24 CFR 103.410.
The Department refers to the appropriate administrative agency a
complaint that arises in a jurisdiction that has been determined to
have a state or local law that provides rights and remedies
substantially equivalent to the Act, and which has a Cooperative
Agreement with the Department to process housing discrimination
complaints. 42 U.S.C. 3610(f); 24 CFR 103.100. Additionally, the United
States Department of Justice (DOJ) has authority to commence litigation
when it determines that there is a pattern or practice of
discrimination. 42. U.S.C. 3614(a); 24 CFR 103.500.
When the Department receives a potential housing discrimination
complaint alleging violations of the design and construction
requirements of the Act, it first makes an initial determination
whether it has jurisdiction to investigate the complaint. In making
that determination, the Department examines whether: (1) The person or
organization filing the complaint alleges an injury because of the fact
that the property in question was not designed and constructed to meet
the accessibility requirements of the Act; (2) The complaint was filed
within one year of the date on which the alleged discrimination
occurred or terminated; (3) The Department has jurisdiction over the
owners, developers, architects and others involved in the design and
construction who are named in the complaint (the respondents); and (4)
The property is a ``covered multifamily dwelling'' under the Act that
was designed and constructed for first occupancy after March 13, 1991.
An investigation of an accessibility discrimination complaint under
the Act typically involves a review of building permits and
certificates of occupancy, plans and specifications showing the design
of the buildings and the site, and an on site inspection of the
property. During the investigation, Department investigators or
contractors takes measurements of relevant interior and exterior
elements on the property. All parties to the complaint have an
opportunity to present evidence concerning whether the Department has
jurisdiction over the complaint, and whether the Act has been violated
as alleged.
In making a determination whether the design and construction
requirements of the Act have been violated, the Department uses the
language of the Act, the regulations, the Guidelines, and the technical
standards for the interiors of dwellings and for public and common use
areas found in the ANSI A117.1-1986 standard. The
[[Page 15757]]
respondents to the complaint have an opportunity to demonstrate that
the requirements of the Act have been met even if the standards in the
Guidelines, the Design Manual, or ANSI A.117.1-1986 have not been met.
Upon publication of an interim rule announcing the Department's
position that ICC/ANSI A117.1-1998 and CABO/ANSI A117.1-1992 also
constitute safe harbors for compliance, as explained earlier in this
policy statement, the Department will also consider evidence provided
by a respondent showing that the respondent has complied with either of
those editions of ANSI A117.1.
When the Department or DOJ finds that the design and construction
requirements of the Act have been violated, the Department or DOJ seek
to remedy the violation, including appropriate remedies for the victim
of discrimination. Where technically and otherwise feasible, the
Department or DOJ seek to have the property retrofitted so that it
meets the requirements of the Act. The requirement to retrofit applies
even though a building code may not require properties to be altered in
order to meet the requirements of the Act. Where it is not feasible to
retrofit the property, the Department or DOJ explore with all parties
other remedies that will provide accessible housing opportunities for
persons with disabilities.
Other Accessibility Standards
Nothing in the Act precludes a jurisdiction from adopting
accessibility standards that provide a greater degree of accessibility
than is required under the Act. 42 U.S.C. 3604(f)(7). In addition,
residential properties may be subject to more than one accessibility
standard. For example, when a residential property receives federal
financial assistance, it must comply with the accessibility
requirements of Section 504, 24 CFR 8.1, et seq.; and may also be
subject to the ABA.
The Americans with Disabilities Act (the ADA) also contains
accessibility requirements, which have been incorporated in the
Americans with Disabilities Act Standards for Accessible Design (ADA
Standards), 28 CFR Part 36, Appendix A (1999). The requirements of
Title II of the ADA, which prohibits discrimination on the basis of
disability by public entities, apply, in relevant part, to housing that
is designed and constructed by a state or local governmental entity
(including a public housing authority). 42 U.S.C. 12131-12134. The
requirements of Title III of the ADA, which prohibits discrimination by
private owners or operators of public accommodations, apply, in
relevant part, to commercial facilities and public accommodations in
connection with housing. 42 U.S.C. 12181-12189.
The Department wishes to stress that developments may be subject to
more than one accessibility requirement and all applicable laws must be
read together. If the Fair Housing Act's accessibility requirements
apply to a development that is also subject to the ADA, Section 504 or
the ABA, the Fair Housing Act requirements do not preempt the ADA,
Section 504 or ABA requirements.
Conclusion
Overall, the Final Report acknowledges that the model building
codes reflect the majority of the technical requirements of the Act. In
addition, the Final Report found that all four model building codes
applied accessibility requirements to most, but not all, of the covered
multifamily dwellings that are subject to the design and construction
requirements of the Act. The Final Report identifies areas where the
model building codes need to be revised in order to ensure that they
are consistent with the requirements of the Act, and makes
recommendations to assist the model building code organizations in
developing model building codes that are consistent with the design and
construction requirements of the Act.
Chapter 3: International Building Code Analysis
I. Purpose
The purpose of this report is to identify provisions of the
International Building Code (IBC) First Draft and proposed Chapters 10,
11, Appendix to Chapter 11, and Section 3407 of the International
Building Code 2000 (IBC 2000) that do not meet the requirements of the
Fair Housing Act (the Act), the Department's regulations implementing
the Act (the regulations), or the Fair Housing Accessibility Guidelines
(the Guidelines). Where variances are identified, recommendations are
provided for how the IBC should be revised to meet the requirements of
the Act, the regulations, or the Guidelines.
Where an IBC Section citation refers to ``IBC 2000'' in this
report, it is for the purpose of reflecting revisions to substance or
numbering of the Section that were made from the First Draft of the IBC
to the proposed IBC 2000. If the citation does not include a reference
to the proposed IBC 2000, it is SWA's understanding that there is no
difference in substance between the IBC and the proposed IBC 2000.
However, it should be noted that some chapters of the proposed IBC
2000, notably Chapter 3, were not available for review at the time of
this report.
II. Methodology
The analysis of the IBC by the Department and Steven Winter
Associates, Inc. (SWA), its contractor, consisted of the following:
--A review of the language of the Act, 42 U.S.C. 3604 (f)(3)(C), the
regulations, 24 CFR 100.201 and 205, the Guidelines,'' 56 FR at
9472-9515 (March 6, 1991), and the ``Supplement to Notice of Fair
Housing Accessibility Guidelines: Questions and Answers About the
Guidelines,'' 59 FR 33362-33368 (June 28, 1994) (the Questions and
Answers About the Guidelines).
--A review of the December 15, 1997, copyrighted comparative matrix
developed by the International Code Council, Inc. (ICC), Building
Officials & Code Administrators International, Inc. (BOCA),
International Conference of Building Officials (ICBO), Southern
Building Code Congress International, Inc. (SBCCI), and the Council
of American Building Officials (CABO). The matrix consists of a
side-by-side comparison of the Guidelines with the corresponding
accessibility provisions of the three national model building codes
and the IBC. The analysis of the IBC began with a review of the
column of the matrix that includes the IBC's accessibility
requirements and comparing them with the column that includes the
provisions of the Guidelines. The matrix review was conducted to
identify apparent variances between IBC's accessibility requirements
and those of the Act, the regulations, and Guidelines.
--A review of the accessibility provisions of the IBC, First Draft,
November 1997, herein referred to as the IBC; and a review of
applicable referenced codes and standards, including: American
National Standards Institute (ANSI) A117.1-1986, which is referenced
in the regulations, and ICC/ANSI A117.1-1998. The IBC, First Draft,
November 1997, refers to CABO/ANSI A117.1-1992 for the technical
provisions for accessibility. In the July 1998, Final Draft, the
title of the referenced standard was editorially revised from CABO
A117.1 to ICC/ANSI A117.1-1998 to reflect the change in the
secretariat. Proposed changes to the Final Draft to be included in
the IBC 2000 include changing the title of the referenced standard
to ICC A117.1-1998. However, this standard is herein referred to as
ICC/ANSI A117.1-1998. Because the matrix did not include full text
of the technical provisions, it was necessary to use these standards
as companion documents in assessing the matrix, the Guidelines, and
the IBC. They were reviewed to identify any variances from the Act,
regulations, or Guidelines in the technical provisions required by
each.
--Interviews with Kim Paarlberg, BOCA Staff Architect and the
liaison to the IBC Means of Egress/Accessibility Committee, to gain
insight into how the ICC responds to
[[Page 15758]]
variances that were identified. SWA found it necessary to understand
ICC's interpretations of its own requirements that may not be
apparent when reviewing code text.
--A review of the August 23, 1999 update to the December 15, 1997
comparative matrix, prepared by BOCA. The updated matrix compared
the Guidelines with the November 1997 First Draft International
Building Code and the proposed IBC 2000. The updated matrix includes
the final text of any changes to the first draft subject to final
approval by ICC.
--A review of the proposed IBC 2000 Chapters 10 and 11, Section
3407, and the Appendix to Chapter 11. Hereafter, all references to
IBC 2000 refer to these chapters only. They were used to cross check
sections of the updated matrix that indicated changes to the first
draft to be included in the IBC 2000. The updated matrix included
``challenges,'' or proposed changes to the Final Draft, that were
voted on during hearings on September 12-17, 1999. The analysis was
completed based on information from ICC that the challenges did not
pass.
The Department formed a Model Code Working Group consisting of
representatives from the Office of Fair Housing and Equal Opportunity,
the Office of General Counsel, and the Office of Housing. A
representative of the U.S. Department of Justice (DOJ) also
participated in the Working Group. The Working Group conferred with SWA
by conference call on September 15, 1999, asking questions and making
comments and suggestions about the analysis. This meeting led to
further conversations between SWA and Kim Paarlberg, and conversations
between Department staff and other code staff.
The draft report was made available for public comment on October
26, 1999, and a public meeting on the draft report was held on November
10, 1999. In addition to oral testimony, and written testimony provided
at the public meeting, the Department received 30 written comments on
the report. These written comments included one set of consolidated
comments from a group of organizations. All comments were reviewed and
considered. The Final Report incorporates many of those comments and
has been revised from the draft report.
III. The International Building Code
The International Code Council (ICC) is an umbrella organization
created in 1994 to assist common code development. The International
Building Code (IBC) represents an effort to bring national uniformity
to building codes. Drafts of the proposed code were developed by
representatives of the three national model code bodies: The Building
Officials and Code Administrators International (BOCA), Inc., the
International Conference of Building Officials (ICBO), and the Southern
Building Code Congress International (SBCCI), Inc.
The IBC includes provisions for accessibility intended to reflect
the intent of the Act, the regulations and the Guidelines. Chapter 11
of the Code, ``Accessibility'' addresses the accessibility provisions
of the Act. Any jurisdiction that adopts the IBC 2000 code must follow
these accessibility provisions.
A Working Draft of the IBC was published in May, 1997. This draft
was revised to include approved changes and was published as the First
Draft, November 1997. The first draft was revised to include approved
changes and was published as the Final Draft, July 1998. Hearings on
the proposed changes to the Final Draft were held in September, 1999.
The IBC 2000 Edition is now scheduled to be published. The IBC 2000
consists of the IBC Final Draft plus all approved 1999 Cycle changes.
(ICC has informed SWA that November 1, 1999, is the start of the next
code development cycle, called the 2000 Cycle during which the ICC will
address proposed changes to the 2000 Edition. The 2000 Cycle will end
in September of 2000, and approved changes from that cycle, along with
approved changes from the subsequent 2001 Cycle and a 2002 Cycles, will
be incorporated and will constitute the 2003 Edition of the IBC.)
Unlike the Act, the IBC is a model building code and not a law. It
provides minimum standards for public safety, health and welfare as
they are affected by building construction. Compliance with the IBC is
not required unless adopted by reference by a jurisdiction's board,
council, or other authoritative governing body. Jurisdictions may adopt
a model building code in its entirety or with modifications; hence, the
building codes are referred to as ``model codes.''
Historically, model building codes have required that a certain
percentage or number of dwelling units in defined residential uses meet
the standards for accessibility that have been defined in versions of
ANSI A117.1 prior to 1998. These dwelling units are referred to in the
IBC in Section 1102 as a ``Type A dwelling unit.'' ICC/ANSI A117.1-1998
is the first edition of ANSI A117.1 to include technical standards for
what is referred to as a ``Type B dwelling unit.'' The ICC/ANSI A117.1
does not define a Type B unit, however, Section 101 of the standard
states: ``Section 1003 of this standard provides technical criteria for
Type B dwelling units. These criteria are intended to be consistent
with the intent of only the technical requirements of the Federal Fair
Housing Amendments Act Accessibility Guidelines. These Type B dwelling
units are intended to supplement, not replace, accessible Type A
dwelling units as specified in this standard.'' See ICC/ANSI A117.1-
1998, Section 101. Therefore, the purpose of the ICC/ANSI A117.1-1998
technical criteria for Type B dwelling units is to incorporate
technical provisions for the interiors of dwelling units, intended to
be consistent with the Act, the regulations, and the Guidelines. It is
important to note, however, that ICC/ANSI A117.1-1998 does not contain
scoping provisions. The importance of this distinction is discussed
below.
In the IBC 2000, Section 1102 defines Type B dwelling units as
follows: ``A dwelling unit designed and constructed for accessibility
in accordance with ICC/ANSI A117.1, intended to be consistent with the
technical requirements of fair housing required by federal law.''
As noted under ``Methodology,'' above, the IBC references the ICC/
ANSI A117.1-1998 standard, but in the code, the reference is to ``ICC
A117.1.'' The reference to ``ANSI'' has been dropped. While not a
variance, the Department recommends that the IBC consider reinstating
the use of ``ANSI'' in the title, since the Act itself references the
ANSI A117.1 standard.
IV. Scoping Provisions
Building codes have two major components that are relevant to this
analysis. One component describes the technical standards that should
be applied during the design and construction or alteration of a
building or structure or elements within a structure. The other
component is a description of the types of buildings or structures or
elements within a structure to which the technical standards are
applied. The provisions in this second component are referred to as
``scoping'' provisions. This section of the analysis sets forth areas
where the scoping provisions of the IBC do not include all of the
dwelling units, buildings, or uses that are covered by the Act, the
regulations, or the Guidelines. This analysis of the scoping provisions
of the IBC included an examination of the following:
IBC's definition of dwelling unit, building, structure, and
ground floor dwelling unit;
IBC's classification of residential buildings according to use
and occupancy; and IBC's scoping of dwelling units to which the
accessibility provisions apply.
Based on the First Draft of the IBC, those chapters of the proposed
IBC 2000 that were available for review, and
[[Page 15759]]
conversations with representatives of the ICC, the Department and SWA
concludes in this analysis that the proposed IBC 2000 covers most of
the same dwelling units, buildings and residential uses as do the Act,
the regulations, and the Guidelines. For example, the Department and
SWA concluded that, in buildings with four or more dwelling units,
apartments, custom-designed condominiums, multistory units with
internal elevators, single-story townhouses and modular units are
covered; and additions of four or more dwelling units to existing
buildings are included within the IBC's scoping requirements for Type B
dwelling units.
However, the Department and SWA have concluded that the following
provisions of the proposed IBC 2000 do not or may not include ``covered
multifamily dwellings'' as they are defined in the Act, the
regulations, and Guidelines.
Definition of ``Dwelling Unit''--(Draft Recommendation #1)
The regulations define the term ``dwelling unit'' as:
A single unit of residence for a family of one or more persons.
Examples of dwelling units include: a single family home; an apartment
unit within an apartment building; and in other types of dwellings in
which sleeping accommodations are provided but toileting or cooking
facilities are shared by occupants of more than one room or portion of
the dwelling, rooms in which people sleep. Examples of the latter
include dormitory rooms and sleeping accommodations in shelters
intended for occupancy as a residence for homeless persons.
24 CFR 100.201. It is clear from the discussion in the preamble to the
regulations, 54 FR 3232-3317 (Jan. 23, 1989) (the preamble), that the
Department intended that each sleeping room occupied by a separate
household in a building with shared toileting or kitchen facilities
would be considered a separate dwelling unit, and that buildings with
four or more of these sleeping accommodations are ``covered multifamily
dwelling units'' for purposes of the Act. 54 FR at 3244.
Of course, a detached building that has four or more sleeping rooms
with shared toileting or kitchen facilities and that is intended for
occupancy by one household is not considered to be a ``covered
multifamily dwelling'' under the Act. For example, a detached single
family house with four bedrooms occupied by four or more persons
related by birth or marriage is not a ``covered multifamily dwelling.''
In addition, a single family house occupied by four or more unrelated
persons that functions as one distinct household, such as what is
commonly referred to as a ``group home,'' would not be considered to be
a ``covered multifamily dwelling'' for purposes of the application of
the design and construction requirements of the Act. This latter
example is consistent with case precedent and the position of the
Department and the Department of Justice with respect to the
application of zoning and land use restrictions to single family group
homes.
The IBC defines the term ``dwelling unit'' in Section 310.2,
Definitions, as follows: ``A single unit providing complete,
independent living facilities for one or more persons, including
permanent provisions for living, sleeping, eating, cooking and
sanitation.'' The IBC does not consider sleeping accommodations
intended for occupancy by separate households in a building with shared
toileting or kitchen facilities to be dwelling units.
In general, the IBC 2000 (1107.5.4) applies the accessibility
requirements in a Type B dwelling unit to occupancies in Group R-2
containing four or more dwelling units and in occupancies in Group R-3
where there are four or more dwelling units in a single structure. The
list of R-2 occupancies includes non-transient boarding houses and
dormitories, as well as fraternity and sorority houses. Dormitories are
listed in both the regulations and the Guidelines as being covered
under the Act's accessibility requirements. Subsequent interviews with
representatives of ICC have clarified that the IBC does not define a
dormitory room whose occupants share kitchen or bathroom space with the
other residents of that building as a ``dwelling unit.'' According to
ICC representatives, there is no circumstance in which the IBC
considers a separate sleeping room to be ``dwelling unit.''
In its draft report, SWA proposed revising the IBC definition of
``dwelling unit'' to be consistent with the regulations, to include
sleeping rooms occupied by separate households. In response to comments
on the draft report, the Department determined that it would withdraw
this recommendation. Instead, recommendations respecting the scoping
requirements of Chapter 11 have been revised to add references to both
dwelling units and ``sleeping accommodations'' as defined by the IBC in
chapter 1. See Recommendation 2, below. Therefore, the former
Recommendation Number 1 has been eliminated.
Dwelling Unit, Type B
The IBC 2000 (1102) defines ``Dwelling Unit, Type B'' as a dwelling
unit designed and constructed for accessibility in accordance with ICC/
ANSI A117.1-1998, intended to be consistent with the technical
requirements of fair housing required by federal law. The IBC 2000
(1102) also defines Dwelling Unit, Type A as a dwelling unit designed
and constructed for accessibility in accordance with ICC/ANSI A117.1-
1998. The Department has determined that the difference in the
definitions of Type A and Type B units is unclear. In addition, by
referring to ``fair housing required by federal law'' in the definition
of Dwelling Unit, Type B, it may be incorrectly inferred that this
encompasses all federal laws, including, for example, the Americans
with Disabilities Act (ADA) of 1990, and Section 504 of the
Rehabilitation Act of 1973 (Section 504). Type B dwelling units are
intended to be consistent with the federal Fair Housing Act only.
Recommendation Number 1
It is recommended that the proposed IBC 2000 be revised to include
a modification of the definition of Dwelling Unit, Type B (1102) as
follows:
Dwelling Unit, Type B: A dwelling unit designed and constructed for
accessibility in accordance with ICC/ANSI A117.1-1998, intended to be
consistent with the design and construction requirements of the federal
Fair Housing Act.
Residential Care/Assisted Living Facilities--(Draft Recommendations
Numbers 1 and 3)
The Act defines a ``dwelling'' as ``any building, structure, or
portion thereof which is occupied as, or designed or intended for
occupancy as, a residence by one or more families.'' 42 U.S.C. 3602
(b). Such a building may serve more than one purpose. Some buildings,
known as continuing care facilities, residential care facilities, or
assisted living facilities, serve both as a residence for their
occupants and as a place where the occupants receive personal, medical
or other support services.
The Questions and Answers About the Guidelines addressed the issue
of whether the design and construction requirements of the Act apply to
continuing care facilities which incorporate housing, health care and
other types of services. That publication states:
The new construction requirements of the Fair Housing Act would
apply to continuing care facilities if the facility includes at
least
[[Page 15760]]
one building with four or more dwelling units. Whether a facility is
a ``dwelling'' under the Act depends on whether the facility is to
be used as a residence for more than a brief period of time. As a
result, the operation of each continuing care facility must be
examined on a case-by-case basis to determine whether it contains
dwellings. 59 FR at 33364.
According to the IBC, most of these types of facilities, referred
to by the IBC as Residential Care/Assisted Living facilities, are
classified as R-4, I-1, or I-2 occupancies and are not required to
comply with the proposed IBC 2000, Section 1107.5.4, Accessible
dwelling units. According to the IBC, Section 310.2, Definitions, the
term ``Residential Care/Assisted Living Facilities'' is defined as
follows:
A building or part thereof housing a maximum of sixteen (16) or
less persons, on a 24-hour basis, who because of age, mental
disability or other reasons, live in a supervised residential
environment which provides personal care services. The occupants are
mostly capable of responding to an emergency situation without
physical assistance from staff. The classification shall include
residential board and care facilities, assisted living facilities,
halfway houses, group homes, congregate care facilities, social
rehabilitation facilities, alcohol and drug abuse centers and
convalescent facilities. Residential Care/Assisted Living Facilities
housing more than sixteen (16) persons shall be classified as a
Group I-1.
If a Residential Care/Assisted Living Facility has between 6 and 16
occupants, it is classified as R-4, and not covered under the proposed
IBC 2000 1107.5.4. In group R-4, at least one of the sleeping rooms and
associated toilet and bathing facilities shall be accessible. (IBC 2000
Section 1107.5.7.)
The only instance where a Residential Care/Assisted Living Facility
is required to comply with the proposed IBC 2000 Section 1107.5.4,
Accessible dwelling units, is if the facility has five or less
occupants, regardless of whether the occupants are capable of self
preservation. Sections 308.2; 308.3. In that case, they are classified
as R-3 occupancies, which are required to comply with the proposed IBC
2000 Section 1107.5.4, Accessible dwelling units, if they have four or
more dwelling units as defined by the IBC.
If the same facility has more than 16 occupants who are mostly
capable of responding to an emergency situation without physical
assistance from staff, it is classified as I-1. Section 308.2, Group I-
1, is defined by the IBC as follows:
This occupancy shall include a building or part thereof housing
more than 16 persons, on a 24-hour basis, who because of age, mental
disability or other reasons, live in a supervised residential
environment but which provides personal care services. The occupants
are mostly capable of responding to an emergency situation without
physical assistance from staff. Where accommodating persons of the
above description, the following types of facilities shall be
classified as I-1 facilities: residential board and care facilities,
assisted living facilities, half-way houses, group homes, congregate
care facilities, social rehabilitation facilities, alcohol and drug
centers and convalescent facilities.
In occupancies classified as I-1, at least 4% of the sleeping
rooms and their bathing and toilet facilities must be accessible.
(IBC 2000 1107.3.1.)
If the occupants of a facility with more than five occupants are
not capable of responding to an emergency situation without physical
assistance from staff, the facility is classified as I-2. Section
308.3, Group I-2, is defined by the IBC as follows:
This occupancy shall include buildings and structures used for
medical, surgical, psychiatric, nursing or custodial care on a 24-
hour basis of more than five persons who are not capable of self-
preservation. Where accommodating persons of the above description,
the following types of facilities shall be classified as I-2
facilities: hospitals, nursing homes (both intermediate care
facilities and skilled nursing facilities), mental hospitals and
detoxification facilities. A facility such as the above with five or
less persons shall be classified as a residential occupancy.
For nursing homes in Group I-2, at least 50% of the patient
facilities and their bathing and toilet facilities must be accessible.
(IBC 2000 1107.3.2).
The fact that a facility covered under R-4, or I-1, such as a group
home, may be considered to be a ``single family'' residence for zoning
and land use or other purposes, does not preclude its inclusion in the
R-4 or I-1 classification of the IBC. Additionally, a group home or
assisted living facility receiving federal financial assistance may be
required under the applicable HUD program regulations to comply with
the design and construction requirements of the Act, as well as the
accessibility requirements of Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. 794(a), and, where appropriate, the accessibility
requirements of the Americans with Disabilities Act of 1990, 42 U.S.C.
12101, et seq.
The scoping provisions of the IBC with respect to ``Residential
Care/Assisted Living'' facilities do not meet the requirements of the
Act, the regulations, or the Guidelines, because the classification of
these facilities as R-4, I-1, or I-2 may exclude from coverage dwelling
units within those facilities that would be covered by the Act, the
regulations and the Guidelines.
Recommendation Number 2 (Draft Recommendation 1 and 3)
To ensure that the IBC covers the same dwelling units required to
provide accessibility according to the Act, the regulations, and the
Guidelines, it is recommended that the proposed IBC 2000 be revised as
follows:
Modify Sections 1107.3, 1107.3.1, 1107.3.2, 1107.4, 1107.5.1, and
1107.5.7 as follows:
1107.3.1 Group I-1. In occupancies in Group I-1, at least 4
percent, but not less than one, of the residential sleeping rooms and
their bathing and toilet facilities shall be accessible. In addition,
in residential board and care facilities, assisted living facilities,
group homes, congregate care facilities, and convalescent facilities of
Group I-1 occupancies, in structures with four or more sleeping
accommodations intended to be occupied as a residence, every sleeping
accommodation intended to be occupied as a residence shall comply with
the requirements for Type B dwelling units as required by Section
1107.5.4 with the same exceptions as provided for in Section 1107.5.4.
1107.3.2 Group I-2. In nursing homes of Group I-2, at least 50
percent, but not less than one, of the patient sleeping rooms and their
bathing and toilet facilities shall be accessible. In addition, in
nursing homes of Group I-2 in structures with four or more sleeping
accommodations intended to be occupied as a residence every sleeping
accommodation intended to be occupied as a residence shall comply with
the requirements for Type B sleeping accommodations required by Section
1107.5.4 with the same exceptions as provided for in Section 1107.5.4.
1107.4 Care facilities. Occupancies containing care facilities
(Group E, I-2 and I-4) shall be accessible as provided in this chapter.
Exception: Where a care facility is part of a dwelling unit, only
the portion of the structure utilized for the care facility is required
to be accessible. In Nursing homes of Group I-2 where a care facility
is part of a dwelling unit or sleeping accommodation intended to be
occupied as a residence in structures with four or more dwelling units
or sleeping accommodations intended to be occupied as a residence,
every dwelling unit and sleeping accommodation intended to be occupied
as a residence shall comply with the requirements for Type B dwelling
units and Type B sleeping accommodations required by Section 1107.5.4
with the same exceptions as provided in Section 1107.5.4.
[[Page 15761]]
1107.5.1 Accessible sleeping accommodations. In occupancies in
Groups R-1 and R-2 with sleeping accommodations, accessible sleeping
accommodations shall be provided in accordance with Table 1107.5.1. In
addition, In Group R-1 occupancies intended to be occupied as a
residence, R-2, R-3, and R-4 occupancies in structures with four or
more sleeping accommodations intended to be occupied as a residence,
every sleeping accommodation intended to be occupied as a residence
shall comply with the requirements for Type B sleeping accommodations
as required by Section 1107.5.4 with the same exceptions as provided
for in Section 1107.5.4.
Exception: Group homes intended to be occupied by a single
household and detached single-family homes occupied by a single
household.
Modify 1107.5.4, as follows:
1107.5.4 Accessible dwelling units. In occupancies in Group R-2 and
R-3 where there are four or more dwelling units or sleeping
accommodations intended to be occupied as a residence in a single
structure, every dwelling unit and sleeping accommodation intended to
be occupied as a residence shall be Type B. Dwelling units required to
* * * (the rest of 1107.5.4 remains as it currently appears in the
IBC).
Exceptions:
1. Where no elevator service is provided in a building, Type A and
B dwelling units and Type B sleeping accommodations need not be
provided on floors other than the ground floor * * *
2. Where no elevator service is provided in a building and the
ground floor does not contain dwelling units or sleeping accommodations
intended to be occupied as a residence, only those dwelling units and
sleeping accommodations intended to be occupied as a residence located
on the lowest floor containing dwelling units or sleeping
accommodations intended to be occupied as a residence need comply with
the requirements of this section.
3. A multistory dwelling unit * * *
4. The number of Type B dwelling units and Type B sleeping
accommodations provided in multiple non-elevator buildings on a single
site is allowed to be reduced to a percentage of the ground floor
dwelling units and sleeping accommodations intended to be occupied as a
residence which is equal to the percentage of the entire site having
grades, prior to development, which are less than 10 percent; but in no
case shall the number of Type B dwelling units or Type B sleeping
accommodations be less than 20 percent of the ground floor dwelling
units or ground floor sleeping accommodations intended to be occupied
as a residence on the entire site.
5. The required number of Type A and Type B dwelling units and Type
B sleeping accommodations shall not apply. * * *
1107.5.7 Group R-4. In Group R-4, at least one of the sleeping
rooms and associated toilet and bathing facilities shall be accessible.
In addition, in R-4 occupancies in structures with four or more
sleeping accommodations intended to be occupied as a residence, every
sleeping accommodation intended to be occupied as a residence shall
comply with the requirements for Type B sleeping accommodations
required by Section 1107.5.4 with the same exceptions as provided for
in Section 1107.5.4.
Note: See other changes to Exceptions 4 and 5 under new
Recommendations 5, 6 and 7 later in this report.
Transient Housing--(Draft Recommendation Number 2)
In its Draft Recommendation 2, HUD proposed that the IBC be revised
to make clear that certain types of housing that the IBC viewed as
transient are dwellings subject to the requirements of the Fair Housing
Act, including the design and construction requirements. This housing
may include timeshares, residential hotels and motels, and homeless
shelters. The IBC uses a 30-day measure as the means to determine
whether a building is for transient use and thus not a dwelling subject
to the Act or chapter 11.
A 30-day measure is inappropriate in determining whether a building
is covered by the Act. The IBC's 30-day test of transience is
inappropriate because it misleads designers, builders and other readers
of the code that such housing need not meet the requirements of the
Act. Length of stay is only one factor in determining whether a
building is a ``covered multifamily dwelling. Other factors to be
considered include: (1) Whether the rental rate for the unit will be
calculated based on a daily, weekly, monthly or yearly basis; (2)
Whether the terms and length of occupancy will be established through a
lease or other written agreement; (3) What amenities will be included
inside the unit, including kitchen facilities; (4) How the purpose of
the property is marketed to the public; (5) Whether the resident
possesses the right to return to the property; and (6) Whether the
resident has anywhere else to which to return.
Accordingly, because the above-described types of housing which are
subject to the Act are not required to meet IBC Chapter 11 requirements
for dwelling units, the IBC is not consistent with the Act, the
regulations and the Guidelines. At this time, the Department is
uncertain how best to resolve this inconsistency between the IBC and
the Department's regulations. Therefore, the Department is withdrawing
Draft Recommendation Number 2. The Department will continue to work
with ICC and other interested organizations to develop language that
appropriately conveys to builders and designers that certain
residencies of less than 30 days must meet the Act's accessibility
requirements. In the meantime, the Department believes the factors
listed above must be considered by owners, builders, developers,
designers and architects in determining whether the requirement of the
Act apply to the design and construction of buildings with rooms for
short term occupancy.
Ground Floor--(Draft Recommendation Number 4)
The regulations define ``ground floor'' as a ``floor of a building
with a building entrance on an accessible route. A building may have
one or more ground floors.'' 24 CFR 100.202. The Guidelines further
state: ``Where the first floor containing dwelling units in a building
is above grade, all units on that floor must be served by a building
entrance on an accessible route. This floor will be considered to be a
ground floor.'' 56 FR at 9500.
If a building is built into a hill, for example, and the front and
the back of the building have entrances to dwelling units at grade, but
at different elevations, the ground floor dwelling units on both levels
are covered under the Guidelines. See the Questions and Answers About
the Guidelines question number 6. 59 FR at 33364.
The IBC defines a Dwelling Unit, Ground Floor as: ``A dwelling unit
with a primary entrance and habitable space at grade.'' (1102.1)
IBC 2000 Exception 1, Section 1107.5.4, Accessible dwelling units,
states that where no elevator service is provided in a building, Type B
dwelling units need not be provided on floors other than the ground
floor. The IBC's definition of ``dwelling unit, ground floor'' does not
specifically provide that a building can have more than one ground
floor. For example, if a building is built into a hill, and the front
and the back of the building have entrances to dwelling units at grade,
but at different elevations, the ground floor dwelling units on both
levels are covered under the Guidelines. The proposed IBC 2000 is not
clear that there may be more than
[[Page 15762]]
one ground floor or ground floor units on different levels of a
building.
In its draft report for public comment, the Department offered a
recommendation that the IBC 2000 define ground floor to match the
regulations and the Guidelines, and delete the definition of ``dwelling
unit, ground floor'' from Section 1102. In addition, the Department
recommended that Exception 1 to Section 1107.5.4 be modified to
recognize that there may be more than one ground floor. As the
Department stated in the introduction to this report, it is mindful of
the fact that the language in the regulations and the Guidelines is not
couched in building code terminology. The Department is, therefore,
withdrawing this recommendation. However, the Department maintains that
the IBC is inconsistent with the Act, the regulations and the
Guidelines with respect to requiring additional ground floors to be
accessible. In addition, during review of the public comments, two
additional concerns arose: (1) Whether or not the IBC scoping language,
in combination with the definition of ``dwelling unit, ground floor,''
makes it clear that there must be at least one ground floor, and (2)
Whether the language at Exception 2 of 1107.5.4 results in requiring
builders to make the lowest floor containing dwelling units of a
building accessible even if it were more practical to make a different
floor (such as the second floor) containing dwelling units accessible
when that floor is closer to the grade, even if not ``at grade.''
The Department will, however, work with the model code
organizations, and any other interested persons, to develop alternative
language that will address this issue to the Department's satisfaction.
In the meantime, builders, developers, owners, designers, architects
and others involved in the design and construction of housing covered
by the Act must apply the Department's definition of ``ground floor''
when making decisions about the applicability of the accessibility
requirements of the Act.
Definition of Building and Structure--(Draft Recommendation Number 5)
In this recommendation, the Department recommended that the
Exceptions to Section 1107.5.4 use the term ``structure'' instead of
``building.'' This was recommended both for consistency with the
charging paragraph, and in order to ensure that the intent of the code,
that, for purposes of accessibility, IBC treats dwelling units in
buildings separated by firewalls as a single structure. Based on the
comments the Department received on this recommendation, the Department
has withdrawn this recommendation.
Buildings Connected by Breezeways or Stairways--(Draft Recommendation
Number 6)
The regulations define a building as ``a structure, facility or
portion thereof that contains or serves one or more dwelling units.''
24 CFR 100.201. Based on that definition, a structure with three
dwelling units that is structurally connected to another structure with
three units, by a stairway or breezeway, for example, is considered one
covered multifamily dwelling with six dwelling units.
In most cases, under the IBC, two structures that are connected by
a breezeway or stairway and share the same roof as the breezeway or
stairway are also considered one building. As a result, if the total
units in both structures equals four or more, then the building must
comply with the IBC's accessibility provisions.
It appears, however, that in cases where the breezeway or stairway
that structurally connects both buildings does not provide the only
means of egress and does not share the same roof as the two structures,
whether or not this design is considered one building must be
determined under the IBC on a case-by-case basis. In addition, in some
cases, the IBC considers walkways, breezeways, and stairways accessory
structures and not integral to the building. If they are determined to
be accessory structures, each building that they connect is examined
separately. As a result, the IBC may not meet the requirements of the
Guidelines in terms of covered units connected by breezeways or
stairways.
Recommendation Number 3 (Draft Recommendation 6)
It is recommended that the proposed IBC 2000 be modified to include
a revision to Section 3104.2, Separate structures, as follows:
3104.2. Separate structures. Connected buildings shall be
considered to be separate structures. For purposes of calculating
the number of Type B dwelling units and Type B sleeping
accommodations required by Chapter 11, structurally connected
buildings and buildings with multiple wings shall be considered one
structure.
Multistory Dwelling Units--Draft Recommendation Number 7
The regulations determined that a multistory dwelling unit that
does not have an elevator internal to the unit that is located in a
building that does not have an elevator is not a ``covered multifamily
dwelling'' because the entire unit is not on the ground floor. 54 FR at
3244. The Guidelines define a ``multistory dwelling unit'' as a
dwelling unit with finished living space located on one floor and the
floor or floors immediately above or below it. 56 FR at 9500. A
``single-story dwelling unit'' is defined as a dwelling unit with all
finished living space located on one floor. 56 FR at 9501.
The IBC defines ``Dwelling Unit, multistory'' as a dwelling unit
with habitable or bathroom space located on more than one story. IBC
1102.1. The IBC defines ``habitable space'' as a space in a structure
for living, sleeping, eating or cooking. Bathrooms, toilet rooms,
closets, halls, storage or utility spaces and similar areas are not
considered habitable spaces. The IBC does not define the term ``single-
story dwelling unit.'' IBC 202.8.
According to the IBC's definition of ``dwelling unit, multistory'',
a unit would be considered multistory if one level contains living or
``habitable'' space and the floor next above or below contains only a
bathroom. According to the definitions in the Guidelines, a two-level
unit with only a bathroom, or only a bathroom and storage space on one
level, is not a multistory dwelling unit because finished living space
must be located on both floors. Bathroom space alone does not
constitute living space, nor does bathroom and storage space. 56 FR at
9500-01. The IBC's definition of ``dwelling unit, multistory'' does not
meet the Department's interpretation of what constitutes a ``multistory
dwelling unit'' under the Act, the regulations and the Guidelines.
Recommendation Number 4 (Draft Recommendation 7)
It is recommended that the reference to ``or bathroom space'' in
the IBC's definition of ``multistory dwelling unit'' be deleted as
follows:
Section 1102, Definitions--Dwelling unit, multistory: For
purposes of accessibility, this term shall mean a dwelling unit with
habitable space located on more than one story.
V. Seven Specific Design and Construction Requirements
The Guidelines specify seven requirements relating to accessibility
which reflect the language of the Act and the regulations. Compliance
with the provisions of the Guidelines constitutes a safe harbor for
compliance with the requirements of the Act. The Act itself references
the ANSI A117.1 standard as a means for meeting the technical
requirements of the Act. At the time the Act was passed and the
[[Page 15763]]
Guidelines were written, ANSI A117.1-1986 was in effect. Since that
time, there have been two additional editions of ANSI A117.1 published,
the CABO/ANSI A117.1 in 1992 and the ICC/ANSI A117.1 in 1998.
The proposed IBC 2000 utilizes the technical criteria contained in
ICC/ANSI A117.1-1998. As stated in the Department's policy statement
and the Introduction to this final report, the Department reviewed the
technical standards in the CABO/ANSI A117.1-1992 and the ICC/ANSI
A117.1-1998 for consistency with the requirements of the Act, the
regulations, the Guidelines, and the 1986 edition of ANSI A117.1. The
Department recognizes that the 1992 and 1993 editions of ANSI have been
adopted by several of the model code organizations, and under many
building codes. The purpose of the Department's review was to identify
any instances where the technical criteria in the later editions of
ANSI A117.1 did not provide the same level of accessibility described
in the Guidelines, or as mandated under the Act, so that the Department
could conclude whether the model codes that adopted the ANSI A117.1
technical criteria were consistent with the Act. In this review, the
Department was mindful that the Act states that compliance with the
ANSI A117.1 standards constitutes compliance with the Act. The
Department found no such instances where a difference between ANSI
A117.1-1992 or 1998 standard was inconsistent with the Guidelines or
the Act.
Requirement 1: Accessible Building Entrance on an Accessible Route
The Guidelines set forth specifications to implement the
requirements of 24 CFR 100.205(a) that all covered multifamily
dwellings shall be designed and constructed to have at least one
building entrance on an accessible route, unless it is impractical to
do so because of terrain or unusual characteristics of the site. 56 FR
at 9503.
Requirement 1 of the Guidelines includes specifications for
providing an accessible entrance on an accessible route, and explains
that the requirements apply to a single building on a site and to
multiple buildings on a site. In addition, Requirement 1 includes
specifications for determining site impracticality based on terrain and
unusual site characteristics; however, the Guidelines specify that
covered multifamily dwellings with elevators shall be designed and
constructed to provide at least one accessible entrance on an
accessible route, regardless of terrain or unusual characteristics of
the site. 56 FR at 9504.
The IBC's provisions relating to the requirement of an accessible
building entrance on an accessible route are consistent with the Act,
the regulations, and the Guidelines except as follows:
Site Impracticality Due to Terrain
The Guidelines set forth two tests to assess site impracticality
due to terrain--the individual building test and the site analysis
test. 56 FR at 9503.
Individual Building Test--This test may be used for all sites, but
must be used for sites with a single building having a common entrance
for all units. 56 FR 9503.
Site Analysis Test--May be used for all sites, including those with
multiple buildings and single buildings with multiple entrances serving
individual dwelling units or clusters of dwelling units except sites
with a single building having a common entrance for all units. This
test has three steps. 56 FR at 9503-04.
Step A requires the calculation of the percentage of total
buildable area of the undisturbed site with a natural slope of less
than 10%. A professional licensed engineer, landscape architect,
architect or surveyor must certify the analysis of the slope. 56 FR at
9504.
Step B states that the percentage of ground floor units that must
be made accessible should be equal to the total buildable area of the
undisturbed site (not including floodplains, wetlands, or other
restricted areas) that has an existing natural grade of less than 10%
slope ( previously determined in Step A). 56 FR at 9504.
Step C requires that in addition, all ground floor units in a
building, or ground floor units served by a particular entrance, shall
be made accessible if the entrance to the units is on an accessible
route, defined as a walkway with a slope between the planned entrance
and a pedestrian or vehicular arrival point that is no greater than
8.33%. In some cases, application of Step C will result in a greater
number of accessible units being required. 56 FR at 9504.
For example, according to the Guidelines' site analysis test for
determining impracticality due to terrain, if 60% of the total area of
an undisturbed site has an existing natural grade of less than 10%
slope, then 60% of the ground floor units are required to be served by
an accessible entrance on an accessible route. If we construct two
buildings not served by elevators on that site, each with 20 ground
floor units for a total of 40 ground floor dwelling units on the entire
site, then 24 ground floor dwelling units (60% of ground floor units)
must have an accessible entrance on an accessible route. In addition,
according to Step C of the site analysis test, all ground floor units
in the building, or ground floor units served by a particular entrance,
shall be made accessible if the entrance to the units is on an
accessible route.
Variance Related to Site Analysis Test--(Draft Recommendation Number 8)
Section 1107.5.4, Exception 4, of the proposed IBC 2000 provides
that the number of Type B dwelling units in multiple non-elevator
buildings on a single site is allowed to be reduced to a percentage of
the ground floor units which is equal to the percentage of the entire
site having grades, prior to development, which are 10% or less; but in
no case shall the number of Type B units be less than 20% of the ground
floor dwelling units on the entire site.
This Exception corresponds to Steps A and B of the site analysis
test, except that the Guidelines require the grades to be ``less than
10%''. In addition, the Exception fails to provide equivalent language
to Step C, i.e., it does not require that, in addition to the
percentage of ground floor units required to be accessible, all ground
floor units in buildings, or ground floor units served by a particular
entrance, must be made accessible if the entrance to the units is on an
accessible route. 56 FR at 9504. Therefore, the IBC does not meet this
aspect of the Guidelines.
Moreover, according to the Guidelines, regardless of site
considerations, an accessible entrance served by an accessible route is
practical whenever an elevator connects parking with a ground floor, in
which case all ground floor units are covered, or whenever an elevated
walk with a slope no greater than 10% is planned between an entrance
and a pedestrian or vehicular arrival point. 56 FR at 9504. The IBC
does not include any language that reflects these requirements. As a
result, the IBC does not meet these provisions of the Guidelines.
Recommendation Number 5 (Draft Recommendation 8)
In order to address these inconsistencies, we recommend the
following modification to 1107.5.4, Exception 4:
The number of Type B dwelling units and Type B sleeping
accommodations provided in multiple non-elevator buildings on a single
site is allowed to be reduced to a percentage of the ground floor units
and sleeping accommodations intended to be occupied as a residence
which is equal to the percentage of the entire site
[[Page 15764]]
having grades, prior to development, which are less than 10%; but in no
case shall the number of Type B dwelling units and Type B sleeping
accommodations be less than 20 percent of the ground floor dwelling
units and ground floor sleeping accommodations intended to be occupied
as a residence on the entire site. In addition to the percentage
established, all ground floor units and ground floor sleeping
accommodations intended to be occupied as a residence in a building, or
ground floor units and ground floor sleeping accommodations intended to
be occupied as a residence served by a particular entrance shall be
Type B if any one of the following applies:
4.1 The slope between the entrance to the units and the sleeping
accommodations intended to be occupied as a residence and a pedestrian
or vehicular arrival point is no greater than 8.33%; or 4.2 An elevator
provides access to the ground floor only; or 4.3 An elevated walkway
with a slope not exceeding 10 percent is planned between an entrance
and a pedestrian or vehicular arrival point. The slope of the walkway,
in such cases shall be reduced to no greater than 8.33%.
Variance Related to Buildings with Elevators--(Draft Recommendation
Number 9)
According to the Guidelines, buildings with elevators must provide
an accessible entrance on an accessible route regardless of site
impracticality. 56 FR at 9503. The IBC 2000 does not reflect this
requirement in Section 1107.5.4, Exception 5.
Recommendation Number 6 (Draft Recommendation 9)
It is recommended that Exception 5, Section 1107.5.4 be modified to
exempt buildings with elevators from site impracticality as follows:
The required number of Type A and Type B dwelling units and Type B
sleeping accommodations shall not apply to a site where the lowest
floor or the lowest structural building members of non-elevator
buildings are required to be at or above the base floor elevation
resulting in * * *
Variance Related to Sites with Unusual Characteristics--(Draft
Recommendation Number 10)
The criteria in the Guidelines for determining site impracticality
for sites having unusual characteristics specifies that an accessible
entrance on an accessible route is impractical when the unusual site
characteristics result in a difference in finished grade elevation
exceeding 30 inches AND 10 percent, measured between an entrance and
ALL vehicular or pedestrian arrival points within 50 feet of the
planned entrance, and if none, then between the closest vehicular or
pedestrian arrival point. 56 FR at 9504.
The IBC's corresponding provision at Section 1107.5.4, Exception 5,
states that the accessibility requirements shall not apply to a site
where the lowest floor or the lowest structural building members is
required to be at or above the base flood elevation resulting in a
difference in elevation between the minimum required floor elevation at
the primary entrances and vehicular and pedestrian arrival points
within 50 feet exceeding 30 inches, OR a slope exceeding 10 percent
between the minimum required floor elevation at the primary entrances
and vehicular and pedestrian arrival points within 50 feet. The
Guidelines specify that the difference in finished grade elevation must
be both 30 inches and 10 percent.
Recommendation Number 7 (Draft Recommendation 10)
It is recommended that Section 1107.5.4, Exception 5, paragraph
5.1, be revised as follows:
5.1. A difference in elevation between the minimum required floor
elevation at the primary entrances and vehicular and pedestrian arrival
points within 50 feet (15 240 mm) exceeding 30 inches (762 mm), AND * *
*
Requirement 2: Accessible and Usable Public and Common Use Areas
The Act and the regulations provide that covered multifamily
dwellings with a building entrance on an accessible route be designed
and constructed in a manner so that the public and common use areas are
readily accessible to, and usable by, people with disabilities. 42
U.S.C. 3604 (f)(3)(C)(i); 24 CFR 100.205 (c )(1). The Guidelines'
Requirement 2 cites the appropriate section of the ANSI A117.1-1986
Standard for the technical provisions for 15 accessible elements or
spaces, and describes the application of the specifications including
modifications to the referenced Standard. 56 FR at 9505. Following are
the 15 basic elements or spaces for accessible and usable public and
common use areas or facilities:
Accessible routes, Protruding objects, Ground and floor surface
treatments, Parking and passenger loading zones, Curb ramps, Ramps,
Stairs, Elevators, Platform lifts, Drinking fountains and water
coolers, Toilet rooms and bathing facilities, Seating, tables, or
work surfaces, Places of assembly, Common-use spaces and facilities,
Laundry rooms.
56 FR at 9505. When a variance is identified in the IBC that does not
meet the requirements of the Guidelines for each of the 15 elements or
spaces above, it is noted below.
Accessible Route(s)
Requirement 1, paragraph (5) of the Guidelines states that if the
slope of the finished grade between covered multifamily dwellings and a
public or common use facility exceeds 8.33%, or where other physical
barriers or legal restrictions, all of which are outside the control of
the owner, prevent the installation of an accessible pedestrian route,
an acceptable alternative is to provide access via a vehicular route,
so long as necessary site provisions such as parking spaces and curb
ramps are provided at the public or common use facility. 56 FR at 9504.
Vehicular Route--(Draft Recommendation Number 11)
IBC 2000 Section 1107.5.5 contains language that is comparable to
the Guidelines with one exception. That section states:
If the slope of the finished ground level between accessible
facilities and buildings exceeds one unit vertical in 12 units
horizontal, or where physical barriers prevent the installation of an
accessible route, a vehicular route with parking at each accessible
facility or building is permitted in place of the accessible route.
The IBC does not include language making it clear that accessible
parking must be available at each public or common use facility if
access is provided by a vehicular route.
Recommendation Number 8 (Draft Recommendation 11)
It is recommended that the proposed IBC 2000 1107.5.5, Accessible
route, be modified to include the following language:
If the slope of the finished ground level between accessible
facilities and buildings exceeds one unit vertical in 12 units
horizontal, or where physical barriers prevent the installation of an
accessible route, a vehicular route with accessible parking in
accordance with 1106, at each public or common use facility or building
is permitted in place of the accessible route.
Headroom--(Draft Recommendation Number 12)
Based on the public comments received, the Department has
determined that the IBC adequately addresses this issue.
[[Page 15765]]
Stairs--(Draft Recommendation Number 13)
The Guidelines require that accessibility be provided on stairs
located along accessible routes connecting levels not connected by an
elevator. 56 FR at 9505. For example, a ground floor entry might have
steps up to a bank of mailboxes, with a ramp located beside the steps.
The stairs in this case are required to meet the ANSI A117.1
specification, since they will be used by people with disabilities for
whom stairs are more usable than ramps. However, stairs are not a
component of an accessible route.
Since stairs are not parts of accessible routes and they are not
specifically referenced in Chapter 11, Accessibility, of the proposed
IBC 2000, one must refer to Chapter 10, Means of Egress, for stair
provisions. However, the Chapter 10 requirements do not necessarily
apply to stairs that connect levels not connected by an elevator if
they are not a part of a means of egress. There are variances between
the proposed IBC 2000 and the Guidelines' requirements for stairs
located along accessible routes not connected by an elevator.
Recommendation Number 9 (Draft Recommendation 13)
It is recommended that the IBC include a provision for stairways
under Section 1108, Other Features and Facilities as follows:
Stairways
Stairways located along accessible routes connecting floor levels
that are not connected by an elevator shall be designed and constructed
to comply with ICC/ANSI A117.1-1998.
Parking and Passenger Loading Zones--(Draft Recommendation Number 14)
The Questions and Answers About the Guidelines (Question and Answer
14c) states that where there are several individual parking garages
grouped together either in a separate area of the building (such as at
one end of the building, or in a detached building), for assignment or
rental to residents, at least 2% of the garages must be at least 14'2"
wide and have a vehicular door at least 10' wide. 59 FR at 33366. This
requirement assumes that garage parking is the only type of parking
provided at the site.
Question and Answer 14c provides the minimum requirement for the
width of accessible garages and garage doors. The minimum widths
provide enough space for an automobile to enter the garage, and for a
passenger or driver using a wheelchair to exit through the garage door
without interference by the automobile. However, the minimum
requirements do not preclude a garage design that provides equivalent
or greater accessibility. For example, a designer may choose to design
a garage with a door that is 8 feet wide, but provides a separate
accessible exit door through which the driver or the passenger may
exit, provided that it connects to the accessible route to the entrance
of the unit.
The IBC does not provide minimum requirements for these garages,
and therefore, does not meet this provision of the Guidelines.
The Guidelines provide that if provided at the site, there be * * *
accessible visitor parking sufficient to provide access to grade-level
entrances of covered multifamily dwellings, and accessible parking at
facilities. The Guidelines also require accessible parking on the same
terms and with the full range of choices (e.g., surface parking or
garage) that are provided to other residents of the project. 56 FR at
9505.
In addition, the Questions and Answers About the Guidelines provide
further clarification of the parking requirements at Q&A 14(b) which
clarifies that when more than one type of parking is provided, at least
one space for each type of parking should be made accessible even if
this number exceeds two percent.
The Department is not recommending that the IBC revise any of its
broader scoping requirements for parking. However, the IBC does not
include comparable language in Section 1106, Parking and Passenger
Loading Facilities, with respect to the above variances. Therefore, the
IBC does not meet the provisions of the Guidelines with respect to
these issues.
Recommendation Number 10 (Draft Recommendation 14)
In order to address these inconsistencies, it is recommended that
the proposed IBC 2000 add the following language to Section 1106.2,
Group R-2 and R-3.
Where there are several individual garages grouped together, either
in a separate area of a structure or in a detached structure, for
assignment or rental to residents, at least 2% of parking garages
provided for Type B dwelling units and Type B sleeping accommodations
must be at least 14'2" wide and have a vehicular door at least 10' wide
* * *
* * * Where accessible parking spaces are provided, at least one of
each type (surface parking, carports, or garage) shall be provided.
* * * Where visitor parking is provided, at least one accessible
visitor parking space shall be provided.
* * * Where parking is provided at public and common use facilities
that serve accessible buildings, at least one accessible parking space
shall be provided.
Recreational Facilities
The Guidelines, in Requirement 2, state that: ``If provided in the
facility or at the site; (a) where multiple recreational facilities
(e.g., tennis courts) are provided sufficient accessible facilities of
each type to assure equitable opportunity for use by persons with
handicaps'' shall be provided. These facilities must be connected by an
accessible route to the covered dwelling units or a vehicular route if
an accessible route is not possible. The IBC Section 1108.14.1 requires
25%, but not less than one, of recreational facilities of each type in
each occupancy group to be accessible.
The Department concludes that the Guidelines may be interpreted to
be stricter than the requirements of the model codes with respect to
the requirement for accessible recreational facilities because an
interpretation of ``sufficient to provide equitable opportunity for
use'' may result in determinations that recreational facilities that
serve different buildings containing accessible dwelling units must be
accessible, even if this means making all of the same type of
recreational facility accessible (such as two swimming pools on a large
site, each serving different buildings on the site).
For example, one out of four recreational facilities of the same
type serving a specific residential use group is code compliant (25%
but not less than one), but may not be considered ``sufficient'' by the
Department if the facilities of the same type are widely spread across
a large site serving one building, or spread across a site on which
there are multiple buildings.
However, because this matter was not included in the draft reports,
and there has not been an opportunity for public participation in a
resolution of this matter, the Department is not including a
recommendation to resolve this matter. The Department will work with
all interested parties to address this matter.
Requirement 3: Usable Doors
The Act and the regulations require that all doors designed to
allow passage into and within a covered dwelling unit be sufficiently
wide to allow passage by persons in wheelchairs. 42 U.S.C. Sec. 3604
[[Page 15766]]
(f)(3)(C)(ii); 24 CFR 100.205(c)(2). The Guidelines set forth criteria
to meet this requirement. 56 FR at 9506. The Guidelines also set forth
additional guidance regarding doors that are a part of an accessible
route in the public and common use areas of multifamily dwellings and
to doors into and within individual dwelling units. 56 FR at 9506.
The Guidelines provide the following:
On accessible routes in public and common use areas, and for
primary entry doors to covered units, doors that comply with ANSI
A117.1 4.13 will meet the Act's requirements for usable doors; and
Within individual dwelling units, doors intended for user passage
through the unit which have a clear opening of at least 32 inches
nominal width when the door is open 90 degrees, measured between the
face of the door and the stop, would meet the Act's requirement.
56 FR at 9506. The Department has determined that the IBC meets the
requirements of the Act, the regulations, and the Guidelines for usable
doors.
Requirement 4: Accessible Route Into and Through the Covered
Dwelling Unit
The Act and the regulations require that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed and constructed in such a manner that all premises within
covered multifamily dwelling units contain an accessible route into and
through the covered dwelling unit. 42 U.S.C. Sec. 3604
(f)(3)(C)(iii)(I); 24 CFR 100.205 (c)(3)(i). Requirement 4 of the
Guidelines sets forth criteria to meet this requirement. 56 FR at 9509-
10. The proposed IBC 2000 meets the provisions of the Act, the
regulations, and Guidelines with respect to Requirement 4, except the
following:
Multistory Units Served by Elevators--(Draft Recommendation Number 15)
Among the criteria for Requirement 4 is the requirement that in
multistory dwelling units in buildings with elevators, the story of the
unit that is served by the building elevator is the primary entry to
the unit. 56 FR at 9507.
The IBC does not mention that where a multistory dwelling unit is
provided with elevator service, the story served by the elevator must
be the primary entry to the unit. As a result, the IBC does not meet
the requirements of the Guidelines in terms of the exceptions for
multistory units in buildings served by elevators.
Recommendation Number 11 (Draft Recommendation 15)
It is recommended that the IBC modify Section 1107.5.4, Exception 3
as follows:
A multistory dwelling unit which is not provided with elevator
service is not required to comply with the requirements for Type B
dwelling units. Where a multistory dwelling unit is provided with
elevator service to only one floor, the floor provided with elevator
service shall be the primary entry to the unit, shall comply with the
requirements for a Type B dwelling unit, and a toilet facility shall be
provided.
Requirement 5: Light Switches, Electrical Outlets, Thermostats, and
Other Environmental Controls in Accessible Locations
The Act and the regulations require that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed and constructed so that all premises within the covered units
contain light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations. 42 U.S.C. Sec. 3604
(f)(3)(C)(iii)(II); 24 CFR 100.205(c)(3)(ii). Requirement 5 of the
Guidelines sets forth criteria to meet these requirements. 56 FR at
9507. The IBC meets the provisions of the Act, the regulations, and
Guidelines with respect to Requirement 5.
Requirement 6: Reinforced Walls for Grab Bars
Requirement 6 of the Guidelines sets forth technical specifications
to meet the requirements of the Act at 42 U.S.C. Sec. 3604
(f)(3)(C)(iii)(III) and the regulations at 24 CFR 100.205(c)(3)(iii),
which specify that all covered multifamily dwellings with a building
entrance on an accessible route shall be designed and constructed so
that all premises within the covered units contain reinforcements in
bathroom walls to allow later installation of grab bars around toilet,
tub, shower stall and shower seat, where such facilities are provided.
56 FR at 9509-10. The proposed IBC 2000 provisions meet the
requirements of the Act, the regulations, and the Guidelines.
Requirement 7: Usable Kitchens and Bathrooms
The Act and the regulations provide that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed to have usable kitchens and bathrooms such that an individual
in a wheelchair can maneuver about the space. 42 U.S.C. Sec. 3604
(f)(3)(C)(iii)(IV); 24 CFR 100.205(c)(3)(iv). Requirement 7 of the
Guidelines sets forth technical criteria to meet those requirements. 56
FR at 9511-15. The proposed IBC 2000 provisions meet the requirements
of the Act, the regulations, and Guidelines.
Chapter 4: Uniform Building Code Analysis
I. Purpose
The purpose of this report is to identify provisions of the 1997
edition of the Uniform Building Code (UBC), published by the
International Conference of Building Officials (ICBO) that do not meet
the requirements of the Fair Housing Act (the Act), the regulations
implementing the 1988 Amendments to the Act (the regulations), or the
Fair Housing Accessibility Guidelines (the Guidelines). Where variances
are identified, the Department recommends how they may be revised to
meet the requirements of the Act, the regulations, or the Guidelines.
II. Methodology
The analysis of the UBC by the Department and Steven Winter
Associates, Inc. SWA, its contractor, consisted of the following:
--A review of the language of the Act, 42 U.S.C. 3604 (f)(3)(C), the
regulations at 24 CFR 100.201 and 205, the Guidelines, 56 FR at 9472-
9515, and the June 28, 1994 ``Supplement to Notice of Fair Housing
Accessibility Guidelines: Questions and Answers About the Guidelines,''
59 FR 12 33362-33368 (the Questions and Answers About the Guidelines).
--A review of the December 15, 1997 copyrighted comparative matrix
developed by the International Code Council (ICC), Buildings Officials
& Code Administrators International (BOCA), International Conference of
Building Officials (ICBO), Southern Building Code Congress
International (SBCCI), and the Council of American Building Officials
(CABO). The matrix, which was included with HUD's Request for
Quotations for this analysis, consists of a side-by-side comparison of
the Guidelines with the corresponding accessibility provisions of the
three model building codes and the UBC. SWA began its analysis of the
UBC by reviewing the column of the matrix that includes the UBC's
accessibility requirements and comparing them with the column that
includes the provisions of the Guidelines. The matrix review was
conducted to identify apparent
[[Page 15767]]
variances between the UBC's accessibility requirements and those of the
Act, regulations, and Guidelines.
--A review of the accessibility provisions of the UBC, 1997 edition and
a review of applicable referenced codes and standards, including:
American National Standards Institute (ANSI) A117.1-1986, which is
referenced in the regulations, and CABO/ANSI A117.1-1992. Because the
matrix did not include full text of the technical provisions, it was
necessary to use these standards as companion documents in assessing
the matrix, the Guidelines, and the UBC. They were reviewed to identify
any variances from the Act, regulations, or Guidelines in the technical
provisions required by each.
--Interviews with Paul Armstrong, ICBO Senior Staff Engineer, to gain
insight into how the UBC responds to variances that SWA identified. SWA
found it necessary to understand ICBO's interpretations of its own
requirements that may not be apparent when reviewing code text.
The Department formed a Model Code Working Group consisting of
representatives from the Office of Fair Housing and Equal Opportunity,
the Office of General Counsel, and the Office of Housing. A
representative of the U.S. Department of Justice also participated on
the Working Group. The Working Group met with SWA on September 29,
1999, asked questions and made comments and suggestions about the
analysis.
The draft report was published for public comment on October 26,
1999, and a public meeting on the draft reports was held on November
10, 1999. Written comments on the report were received. All comments
were reviewed and considered. This final report incorporates many of
those comments and has been revised from the draft report.
III. The Uniform Building Code
The ICBO administers the UBC series of model regulatory
construction codes.
Unlike the Fair Housing Act, the UBC is a model building code and
not a law. It provides minimum standards for public safety, health, and
welfare as they are affected by building construction. Compliance with
the UBC is not required unless adopted by reference by a jurisdiction's
board, council, or other authoritative governing body. Jurisdictions
may adopt a model building code in its entirety or with modifications;
hence, the building codes are referred to as ``model codes.''
The 1997 UBC, published January 1, 1997, includes provisions for
accessibility intended to reflect the intent of the Guidelines.
Previous editions of the code include provisions for accessibility, but
not as required by the Act. The 1997 UBC, Chapter 11, Accessibility, is
the first attempt at codifying the accessibility provisions of the Act.
Any jurisdiction that adopts the 1997 UBC code must follow these
accessibility provisions.
In the past, some model building codes, including the UBC, have
required that a certain percentage or number of dwelling units in
defined residential uses meet the standards for full accessibility as
defined by ANSI A117.1. These dwelling units are referred to in the UBC
in Section 1102 as a ``Type A dwelling unit.'' It is important to note,
however, that CABO/ANSI A117.1-1992, adopted by the UBC, does not
contain scoping provisions, discussed below. The UBC also includes
scoping and technical provisions for a ``Type B dwelling unit,'' which
is intended to reflect the requirements of the Act, the regulations,
and the Guidelines, in Section 1106.
It is the Department's understanding that ICBO will no longer
publish subsequent updates to the latest version of the UBC. The four
model code organizations have joined with the ICC to produce one
international building code under the ICC, the first of which will be
published as the International Building Code 2000 early in the year
2000.
IV. Scoping Provisions
Building codes have two major components that are relevant to this
analysis. One component describes the technical standards that should
be applied during the design and construction or alteration of a
building or structure or elements within a structure. The other
component is a description of the types of buildings or structures or
elements within a structure to which the technical standards are
applied. The provisions in this second component are referred to as
``scoping'' provisions. This section of the analysis sets forth areas
where the scoping provisions of the UBC do not include all of the
dwelling units, buildings, or uses that are covered by the Act,
regulations, or the Guidelines. This analysis of the scoping provisions
of the UBC included an examination of the following:
UBC's definition of dwelling unit, building, structure, and ground
floor dwelling unit;
UBC's classification of residential buildings according to use and
occupancy; and
UBC's scoping of dwelling units to which the accessibility
provisions apply.
This analysis concludes that the UBC covers most of the same
dwelling units, buildings and residential uses as the Act, regulations,
and Guidelines. For example, the Department has concluded that, with
respect to buildings with four or more dwelling units, apartments,
custom-designed condominiums, multistory units with internal elevators,
single story townhouses, and modular units are covered. Additions of
four or more units to existing buildings are also included within the
UBC's scoping requirements for Type B dwelling units. However, the
Department has concluded that the following provisions of the UBC do
not or may not include ``covered multifamily dwellings'' as they are
defined in the Act, regulations or Guidelines.
UBC Classification of Residential Use Groups
The UBC Section 310.1 defines residential occupancies (Group R
occupancies) as follows:
Division 1: Hotels and apartment houses. Congregate residences
(each accommodating more than 10 persons). Section 204, Chapter 2,
defines congregate residences as follows: any building or portion
thereof that contains facilities for living, sleeping and sanitation,
as required by this code, and may include facilities for eating and
cooking, for occupancy by other than a family. A congregate residence
may be a shelter, convent, monastery, dormitory, fraternity or sorority
house, but does not include jails, hospitals, nursing homes, hotels or
lodging houses.
Division 2: Not used.
Division 3: Dwellings and lodging houses. Congregate residences
(each accommodating 10 persons or less). Includes detached one- and
two-family dwellings.
The reference to ``detached one- and two-family dwellings'' under
Division 3 refers to structures that are physically detached.
The UBC requires that in Group R, Division 1 occupancy apartments
containing four or more dwelling units, and in Group R, Division 3
occupancies where there are four or more dwelling units in a single
structure, all dwelling units shall be Type B dwelling units. Section
1103.1.9. In Section 1102, Type B dwelling units are defined as units
that are designed and constructed for accessibility in accordance with
Section 1106. Section 1106 provides the design and construction
requirements for Type B units.
[[Page 15768]]
Congregate Residences--(Draft Recommendation Numbers 1 and 2)
The regulations define the term ``dwelling unit'' as:
A single unit of residence for a family of one or more persons.
Examples of dwelling units include: a single family home; an apartment
unit within an apartment building; and in other types of dwellings in
which sleeping accommodations are provided but toileting or cooking
facilities are shared by occupants of more than one room or portion of
the dwelling, rooms in which people sleep. Examples of the latter
include dormitory rooms and sleeping accommodations in shelters
intended for occupancy as a residence for homeless persons. 24 CFR
100.201.
It is clear from the discussion in the preamble to the regulations,
found at 54 FR at 3244 (Jan. 23, 1989), that the Department intended
that each sleeping room intended for occupancy by a separate household
in a building with shared toileting or kitchen facilities would be
considered a separate dwelling unit, and that buildings with four or
more of these sleeping accommodations are ``covered multifamily
dwelling units'' for purposes of the Act.
Of course, a detached building that has four or more sleeping rooms
with shared toileting or kitchen facilities and that is intended for
occupancy by one household is not considered to be a ``covered
multifamily dwelling'' under the Act. For example, a detached single
family house with four bedrooms occupied by four or more persons
related by birth or marriage is not a covered multifamily dwelling. In
addition, a single family house occupied by four or more unrelated
persons that functions as one distinct household, such as what is
commonly referred to as a ``group home,'' would not be considered to be
a ``covered multifamily dwelling'' for purposes of the application of
the design and construction requirements of the Act. This latter
example is consistent with case precedent and the position of this
Department and the Department of Justice with respect to the
application of zoning and land use restrictions to single family group
homes.
The UBC defines the term ``dwelling unit'' in Section 205, Chapter
2, Definitions and Abbreviations, as follows:
Dwelling Unit is any building or portion thereof that contains
living facilities, including provisions for sleeping, eating, cooking,
and sanitation, as required by this code, for not more than one family,
or a congregate residence for 10 or less persons.
According to Section 1103.1.9.3, Multi-unit dwellings, the UBC's
accessibility provisions apply to Group R, Division 1 and 3
occupancies. In order to determine whether or not dwelling units
covered by the regulations are covered in the same way by the UBC, one
must examine the UBC's classification of each type of unit.
According to Section 310.1 of the UBC, Group R, Division 1
occupancies include hotels, apartment houses, including residential
condominiums, and congregate residences accommodating more than 10
persons. Group R, Division 3 occupancies include dwellings, lodging
houses (containing not more than five guest rooms where rent is paid in
money, goods, labor, or otherwise), and congregate residences
accommodating 10 persons or less.
The accessibility requirements for congregate residences are
covered under UBC Section 1103.1.9.2, hotels, lodging houses, and
congregate residences as follows:
In hotels, lodging houses and congregate residence occupancies
containing six or more guest rooms, multi-bed rooms or spaces for more
than six occupants, one for the first 30 guest rooms or spaces and one
additional for each additional 100 guest rooms or space, or fraction
thereof, shall be accessible. In hotels with more than 50 sleeping
rooms or suites, roll-in-type showers shall be provided in one half,
but not less than one, of the required accessible sleeping rooms or
suites.
Congregate residences that accommodate less than six guest rooms
for less than six occupants are required to provide accessibility
according to 1103.1.9.3, Multi-unit dwellings. However, if a congregate
residence accommodates between six and nine occupants, it can be
covered by either Sections 1103.1.9.3, Multi-unit dwellings or Section
1103.1.9.2, Hotels, lodging houses and congregate residences. According
to ICBO staff interviews, in these cases the UBC requires that the
stricter provision apply.
To the extent that the UBC does not require in congregate
residences that all ground floor sleeping rooms occupied by a separate
household in buildings without an elevator, or all sleeping rooms
occupied by a separate household in elevator buildings, meet the
requirements of a Type B dwelling unit, it does not meet the
requirements of the regulations.
Continuing Care Facilities--(Draft Recommendation Number 3)
Continuing care facilities are covered by the Act. 59 FR at 33364.
The UBC Section 308.1 classifies these types of facilities as Group I,
Division 1.1 and 2 occupancies. These occupancies are defined as
follows:
Group I, Division 1.1: Nurseries for the full-time care of children
under the age of six (each accommodating more than five children).
Hospitals, sanitariums, nursing homes with nonambulatory patients and
similar buildings (each accommodating more than five patients).
Group I, Division 2: Nursing homes for ambulatory patients, homes
for children six years of age or over (each accommodating more than
five patients or children).
The UBC's accessibility provisions for Group R occupancies of four
or more dwelling units do not apply to UBC's Group I occupancies.
However, they are required to provide accessibility as follows:
Section 1103.1.7 Group I Occupancies. Group I occupancies shall be
accessible in public-use, common-use and employee-use areas, and shall
have accessible patient rooms, cells, and treatment or examination
rooms as follows:
In Group I, Division 1.1 and 2 nursing homes and long-term care
facilities, at least one in every two patient rooms, or fraction
thereof, including associated toilet rooms and bathing rooms.
Under the definition of ``dwelling unit'' contained in the
regulations, a sleeping room in a nursing home or a home for juveniles
occupied by an individual as a residence in a building with four or
more such dwelling units would be covered under the accessibility
requirements of the Act. To the extent therefore that sleeping rooms in
Group I, Division 1.2 occupancies are not covered under the
requirements for Type B dwelling units under the UBC, the UBC does not
meet the requirements of the Act.
Recommendation Number 1 (Draft Recommendation Numbers 1, 2 and 3)
To ensure that the UBC covers the same dwelling units and sleeping
rooms required to provide accessibility according to the Act, it is
recommended that the UBC be revised to modify Sections 1103.1.7,
1103.1.9.2, and 1103.1.9.3. 1103.1.7 Group I Occupancies. Group I
Occupancies shall be accessible in public-use, common-use and employee-
use areas, and shall have accessible patient rooms, cells, and
treatment or examination rooms as follows:
[[Page 15769]]
3. In Group I, Divisions 1.1 and 2 nursing homes and long-term care
facilities, at least one in every two patient rooms, or fraction
thereof, including associated toilet rooms and bathrooms. In addition,
in structures with four or more patient rooms intended to be occupied
as a residence, all patient rooms intended to be occupied as a
residence shall comply with the requirements for Type B dwelling units
required by 1103.1.9.3 with the same exceptions as provided for in
Section 1103.1.9.3.
Section 1103.9.2 Hotels, lodging houses and congregate residences.
In addition to the accessible guest rooms required above, and in
addition to the accessible guest rooms for persons with hearing
impairments required above, in congregate residences in structures with
four or more guest rooms intended to be occupied as a residence, all
guest rooms intended to be occupied as a residence shall comply with
the requirements for Type B dwelling units required by 1103.1.9.3 with
the same exceptions as provided for in Section 1103.1.9.3. Section
1103.1.9.3 Multi-unit dwellings.
In Group R, Division 1 Occupancy apartments, and guest rooms
intended to be occupied as a residence containing four or more dwelling
units or guest rooms intended to be occupied as a residence, and Group
R, Division 3 Occupancies where there are four or more dwelling units
in a single structure, or where there are four or more guest rooms
intended to be occupied as a residence, all dwelling units and guest
rooms intended to be occupied as a residence shall be Type B. In Group
R, Division 1 apartment occupancies containing more than 20 dwelling
units, at least 2 percent, but not less than one, of the dwelling units
shall be Type A dwelling units. All dwelling units on a site shall be
considered to determine the total number of accessible dwelling units.
All guest rooms intended to be occupied as a residence shall be
considered to determine the total number of accessible guest rooms
intended to be occupied as a residence on the entire site.
Exceptions:
1. Where no elevator service is provided in a building, Type B
dwelling units and Type B guest rooms intended to be occupied as a
residence need not be provided on floors other than the ground floor.
2. Where no elevator service is provided in a building and the
ground floor does not contain dwelling units or guest rooms intended to
be occupied as a residence, only those dwelling units and guest rooms
intended to be occupied as a residence located on the first floor
containing dwelling units or guest rooms intended to be occupied as a
residence above the floor at grade of either Group R, Division 1
apartment occupancies or guest rooms intended to be occupied as a
residence, or Group R, Division 3 Occupancies need comply with the
requirements of this section.
3. A multistory dwelling unit not provided with elevator service is
not required to comply with requirements for Type B dwelling units.
Where a multistory dwelling unit is provided with elevator service to
only one floor, the floor provided with elevator service shall be the
primary entry to the unit, shall comply with the requirements for a
Type B dwelling unit, and a toilet facility shall be provided on that
floor.
4. The number of Type B dwelling units and Type B guest rooms
provided in multiple non-elevator buildings on a single site may be
reduced to a percentage of the ground floor dwelling units and ground
floor guest rooms intended to be occupied as a residence, that is equal
to the percentage of the entire site having grades, prior to
development, that are less than 10%; but in no case shall the number of
Type B dwelling units or Type B guest rooms be less than 20% of the
ground floor dwelling units or ground floor guest rooms intended to be
occupied as a residence, on the entire site. In addition to the
percentage established, all ground floor units and ground floor guest
rooms intended to be occupied as a residence in a structure, or ground
floor dwelling units or ground floor guest rooms intended to be
occupied as a residence served by a particular entrance shall be Type B
if any one of the following applies:
4.1 The slope between the entrance to the units or guest rooms
intended to be occupied as a residence, and a pedestrian or vehicular
arrival point is no greater than 8.33%; or
4.2 An elevator provides access to the ground floor only; or
4.3 An elevated walkway with a slope not exceeding 10 percent is
planned between an entrance and a pedestrian or vehicular arrival
point. The slope of the walkway, in such cases shall be reduced to no
greater than 8.3%.
5. The required number of Type A and Type B dwelling units and Type
B guest rooms shall not apply to a site where the lowest floor or the
lowest structural building members of non-elevator buildings is
required to be at or above the base floor elevation resulting in:
5.1 NO CHANGE
5.2 NO CHANGE
6. Single family detached houses with four or more sleeping rooms
occupied by a single household of related or unrelated persons.
Note: See Recommendations later in this report regarding
explanations for modifications made to some of the exceptions to
1103.1.9.3 above.
Ground Floor Dwelling Unit--(Draft Recommendation Number 4)
The regulations define ``ground floor'' as a ``floor of a building
with a building entrance on an accessible route. A building may have
one or more ground floors.'' 24 CFR 100.202. The Guidelines further
state: ``Where the first floor containing dwelling units in a building
is above grade, all units on that floor must be served by a building
entrance on an accessible route. This floor will be considered to be a
ground floor.'' 56 FR at 9500.
If a building is built into a hill, for example, and the front and
the back of the building have entrances to dwelling units at grade, but
at different elevations, the ground floor dwelling units on both levels
are covered under the Guidelines. 59 FR at 3364.
Since, according to the example above, both levels of the building
have entrances to dwelling units at grade, the UBC requires
accessibility to these units.
In Section 1102, the UBC defines Ground Floor Dwelling Unit as ``a
dwelling unit with a primary entrance and habitable space at grade.''
However, it is unclear from the UBC's definition of ``ground floor
dwelling unit'' that there can be more than one ground floor, or ground
floor units on different levels of a building. Exception 1, Section
1103.1.9.3, Multi-unit dwellings, states that where no elevator service
is provided in a building, Type B dwelling units need not be provided
on floors other than the ground floor.
In its draft report for public comment, the Department offered a
recommendation that the UBC define ground floor to match the
regulations and the Guidelines, and delete the definition of ``ground
floor dwelling unit'' from Section 1102 (Draft Recommendation Number
4). In addition, the Department recommended that Exception 1 to Section
1103.1.9.3 be modified to recognize that there may be more than one
ground floor. As the Department stated in the introduction to this
report, it is mindful of the fact that the language in the regulations
and the Guidelines is not couched in building code terminology. The
Department is, therefore, withdrawing this recommendation. However, the
Department maintains that the UBC is
[[Page 15770]]
inconsistent with the Act, the regulations and the Guidelines with
respect to requiring additional ground floors to be accessible. In
addition, during review of the public comments, two additional concerns
arose: (1) Whether or not the UBC scoping language, in combination with
the definition of ``ground floor dwelling unit,'' makes it clear that
there must be at least one ground floor, and (2) Whether the language
at Exception 2 of 1103.1.9.3 results in requiring builders to make the
lowest floor containing dwelling units of a building accessible even if
it were more practical to make a different floor (such as the second
floor) containing dwelling units accessible when that floor is closer
to the grade, even if not ``at grade.'' The Department will, however,
work with the model code organizations, and any other interested
persons, to develop alternative language that will address this issue
to the Department's satisfaction.
In the meantime, the Department believes that owners, builders,
developers, designers, architects and others involved in the design and
construction of housing covered by the Act must apply the Department's
definition of ``ground floor'' when making decisions about the
applicability of the accessibility requirements of the Act.
First Level of Living--(Draft Recommendation Number 5)
The Department considers the first level of dwelling units above
retail, parking, commercial space, etc. in buildings without elevators
as the ground floor and all units on that floor must be designed with
an accessible entrance on an accessible route. 56 FR at 9500. The UBC
intends on covering these same units by stating the following in
Exception 2, Section 1103.1.9.3, Multi-unit dwellings:
Where no elevator service is provided in a building and the ground
floor does not contain dwelling units, only those dwelling units
located on the first floor of either Group R, Division 1 apartment
occupancies or Group R, Division 3 occupancies need comply with the
requirements of this section.
The reference to ``first floor'' in Exception 2 above may be
misleading because floor numbers can vary from one building to the
next. For example, what is considered the first floor in one building
may be considered the second floor in another. Although the UBC intends
on covering the first level of living above retail, parking, commercial
space, or private garages if the level at grade does not contain
dwelling units, its intention can be made more clear.
Recommendation Number 2 (Draft Recommendation 5)
It is recommended that 1103.1.9.3, Exception 2 be modified as
follows:
1103.1.9.3 Multi-unit dwellings:
Exception: 2 Where no elevator service is provided in a building
and the ground floor does not contain dwelling units or guest rooms
intended to be occupied as a residence, only those dwelling units and
guest rooms intended to be occupied as a residence located on the first
floor containing dwelling units or guest rooms intended to be occupied
as a residence above the floor at grade of either Group R, Division 1
apartment occupancies or guest rooms intended to be occupied as a
residence, or Group R, Division 3 Occupancies need comply with the
requirements of this section.
Multistory Dwelling Units--(Draft Recommendation Number 6)
The regulations determined that a multistory dwelling unit that
does not have an elevator internal to the unit that is located in a
building that does not have an elevator is not a ``covered multifamily
dwelling'' because the entire unit is not on the ground floor. 54 FR at
3244. The Guidelines define a ``multistory dwelling unit'' as a
dwelling unit with finished living space located on one floor and the
floor or floors immediately above or below it. 56 FR at 9500. A
``single-story dwelling unit'' is defined as a dwelling unit with all
finished living space located on one floor. 56 FR at 9501.
The UBC Defines ``Multistory dwelling unit'' as a dwelling unit
with habitable or bathroom space located on more than one story. (UBC
Chapter 11, Section 1102.) The UBC defines ``habitable space'' as a
space in a structure for living, sleeping, eating or cooking.
Bathrooms, toilet compartments, closets, halls, storage or utility
space, and similar areas, are not considered habitable spaces. (UBC
209)
According to the UBC's definition of ``multistory dwelling unit,''
a unit is considered multistory if one level contains living or
``habitable'' space and the floor next above or below contains only a
bathroom. According to the definitions in the Guidelines, a two-level
unit with only a bathroom, or only a bathroom and storage space on one
level, is not a multistory dwelling unit because finished living space
must be located on both floors. Bathroom space alone does not
constitute living space, nor does bathroom and storage space.
Therefore, the UBC's definition of ``multistory dwelling unit''
does not meet the Department's interpretation of the Act, the
regulations and the Guidelines of what constitutes a ``multistory
dwelling unit.''
Recommendation Number 3 (Draft Recommendation 6)
It is recommended that the reference to ``or bathroom space'' in
the UBC's definition of ``multistory dwelling unit'' be deleted as
follows:
Section 1102, Definitions:
Multistory dwelling unit: For application of the accessibility
requirements, this term shall mean a dwelling unit with habitable space
located on more than one story.
Definition of Building and Structure--(Draft Recommendation Number 7)
In this recommendation, the Department recommended that the
Exceptions to 1103.1.9.3 be modified to eliminate any reference to the
term ``building'' and replacing it with the term ``structure.'' This
was recommended both for consistency with the charging paragraph, and
in order to ensure that the intent of the code, that, for purposes of
accessibility, UBC treats dwelling units in buildings separated by
firewalls as a single structure. Based on the comments the Department
received on this recommendation, the Department has withdrawn this
recommendation.
V. Seven Specific Design and Construction Requirements
The Guidelines specify seven requirements relating to accessibility
which reflect the language of the Act and the regulations. Compliance
with the provisions of the Guidelines constitutes a safe harbor for
compliance with the requirements of the Act. The Act itself references
the ANSI A117.1 standard as a means for meeting the technical
requirements of the Act. As discussed in the Department's policy
statement, at the time the Act was passed and the Guidelines were
written, ANSI A117.1-1986 was in effect. Since that time, there have
been two additional editions of ANSI A117.1 published, the CABO/ANSI
A117.1 in 1992 and the ICC/ANSI A117.1 in 1998.
The Department believes that compliance with either of these newer
editions of the ANSI A117.1 constitutes an additional safe harbor in
terms of demonstrating compliance with the technical provisions of the
Act's accessibility requirements. It is, of course, still necessary to
refer to the Act and the regulations, or the Guidelines, for
implementing the scoping
[[Page 15771]]
requirements. The Department believes that code officials may rely on
the edition of ANSI A117.1 that has been adopted by the model code
organization or state or local jurisdiction, if it has been adopted
without modifications and is uniformly enforced.
The UBC utilizes the technical criteria contained in CABO/ANSI A
117.1-1992. Therefore, the Department has determined that there is no
variance between the requirements of the Act and the model code
provision if the model code provision is based on CABO/ANSI A117.1-
1992, even where those criteria differ from the ANSI A117.1-1986
criteria or the Guidelines.
Requirement 1: Accessible Building Entrance on an Accessible Route
The Guidelines set forth specifications to implement the
requirements of 24 CFR 100.205(a) that all covered multifamily
dwellings shall be designed and constructed to have at least one
building entrance on an accessible route, unless it is impractical to
do so because of terrain or unusual characteristics of the site. 56 FR
at 9503.
Requirement 1 of the Guidelines includes specifications for
providing an accessible entrance on an accessible route and explains
that the requirements apply to a single building on a site and to
multiple buildings on a site. In addition, Requirement 1 includes
specifications for determining site impracticality based on terrain and
unusual site characteristics. However, the Guidelines specify that
covered multifamily dwellings with elevators shall be designed and
constructed to provide at least one accessible entrance on an
accessible route, regardless of terrain or unusual characteristics of
the site.
The UBC's provisions are consistent with the Act, the regulations,
and the Guidelines, except as follows:
Site Impracticality Due to Terrain
The Guidelines set forth two tests to assess site impracticality
due to terrain--the individual building test and the site analysis
test. 56 FR at 9503.
Individual Building Test--This test may be used for all sites, but
must be used for sites with a single building having a common entrance
for all units. 56 FR at 9503.
Site Analysis Test--May be used for all sites, including those with
multiple buildings and single buildings with multiple entrances serving
individual dwelling units or clusters of dwelling units except sites
with a single building having a common entrance for all units. This
test has three steps. 56 FR at 9503-04.
Step A requires the calculation of the percentage of total
buildable area of the undisturbed site with a natural slope of less
than 10%. A professional licensed engineer, landscape architect,
architect or surveyor must certify the analysis of the slope. 56 FR at
9504.
Step B states that the percentage of ground floor units that must
be made accessible should be equal to the total buildable area of the
undisturbed site (not including floodplains, wetlands, or other
restricted areas) that has an existing natural grade of less than 10%
slope (previously determined in Step A) 56 FR at 9504.
Step C requires that in addition, all ground floor units in a
building, or ground floor units served by a particular entrance, shall
be made accessible if the entrance to the units is on an accessible
route, defined as a walkway with a slope between the planned entrance
and a pedestrian or vehicular arrival point that is no greater than
8.33%. In some cases, application of Step C will result in a greater
number of accessible units being required. 56 FR at 9504.
For example, according to the Guidelines' site analysis test for
determining impracticality due to terrain, if 60% of the total area of
an undisturbed site has an existing natural grade of less than 10%
slope, then 60% of the ground floor units are required to be served by
an accessible entrance on an accessible route. If we construct two
buildings not served by elevators on that site, each with 20 ground
floor units for a total of 40 ground floor dwelling units on the entire
site, then 24 ground floor dwelling units (60% of ground floor units)
must have an accessible entrance on an accessible route. In addition,
according to step C of the site analysis test, all ground floor units
in the building, or ground floor units served by a particular entrance,
shall be made accessible if the entrance to the units is on an
accessible route.
Variance Related to Site Analysis Test--(Draft Recommendation Number 8)
Section 1103.1.9.3, Exception 4, of the UBC provides that the
number of Type B dwelling units in multiple non-elevator buildings on a
single site is allowed to be reduced to a percentage of the ground
floor units which is equal to the percentage of the entire site having
grades, prior to development, which are 10% or less; but in no case
shall the number of Type B units be less than 20% of the ground floor
dwelling units on the entire site.
This Exception corresponds to Steps A and B of the site analysis
test, except that the Guidelines require the grades to be ``less than
10%''. 56 FR at 9504. In addition, the Exception fails to provide
equivalent language to Step C--i.e., it does not require that, in
addition to the percentage of ground floor units required to be
accessible, all ground floor units in buildings, or ground floor units
served by a particular entrance, must be made accessible if the
entrance to the units is on an accessible route. 56 FR at 9504.
Therefore, the UBC does not meet this aspect of the Guidelines.
In addition, according to the Guidelines, regardless of site
considerations, an accessible entrance served by an accessible route is
practical whenever an elevator connects parking with a ground floor, in
which case all ground floor units are covered, or whenever an elevated
walk with a slope no greater than 10% is planned between an entrance
and a pedestrian or vehicular arrival point. 56 FR at 9504. The UBC
does not include any language that reflects these requirements. As a
result, the UBC does not meet these provisions of the Guidelines.
In order to address these inconsistencies, it is recommended the
UBC include a modification to Section 1103.1.9.3, Exception 4 as
follows:
Recommendation Number 4 (Draft Recommendation 8)
1103.1.9.3 Multi-unit dwellings:
Exception 4: The number of Type B dwelling units and Type B guest
rooms provided in multiple non-elevator buildings on a single site may
be reduced to a percentage of the ground floor dwelling units and
ground floor guest rooms intended to be occupied as a residence, that
is equal to the percentage of the entire site having grades, prior to
development, that are less than 10%; but in no case shall the number of
Type B dwelling units or Type B guest rooms be less than 20 percent of
the ground floor dwelling units or ground floor guest rooms intended to
be occupied as a residence on the entire site. In addition to the
percentage established, all ground floor units and ground floor guest
rooms intended to be occupied as a residence, in a structure, or ground
floor dwelling units or ground floor guest rooms intended to be
occupied as a residence served by a particular entrance shall be Type B
if any one of the following applies:
4.1 The slope between the entrance to the units or guest rooms
intended to be occupied as a residence and a pedestrian or vehicular
arrival point is no greater than 8.33%; or
4.2 An elevator provides access to the ground floor only; or
4.3 An elevated walkway with a slope not exceeding 10 percent is
planned
[[Page 15772]]
between an entrance and a pedestrian or vehicular arrival point. The
slope of the walkway, in such cases shall be reduced to no greater than
8.3%.
Variance Related to Buildings with Elevators--(Draft Recommendation
Number 9)
According to the Guidelines, buildings with elevators must provide
an accessible entrance on an accessible route regardless of site
impracticality. 56 FR at 9503.
The UBC, Exception 5, Section 1103.1.9.3, states in relevant part
that:
The required number of Type A and Type B dwelling units shall not
apply to a site where the lowest floor or the lowest structural
building members is required to be at or above the base floor elevation
resulting in * * *
Recommendation Number 5 (Draft Recommendation 9)
It is recommended that Section 1103.1.9.3, Exception 5 be modified
to exempt buildings with elevators from site impracticality as follows:
Section 1103.1.9.3 Multi-unit dwellings:
Exception 5. The required number of Type A and Type B dwelling
units and Type B guest rooms shall not apply to a site where the
lowest floor or the lowest structural building members of non-
elevator buildings is required to be at or above the base floor
elevation resulting in * * *
Variance Related to Sites with Unusual Characteristics--(Draft
Recommendation Number 10)
The criteria in the Guidelines for determining site impracticality
for sites having unusual characteristics specifies that an accessible
entrance on an accessible route is impractical when the unusual site
characteristics result in a difference in finished grade elevation
exceeding 30 inches AND 10 percent, measured between an entrance and
all vehicular or pedestrian arrival points within 50 feet of the
planned entrance, and if none, then between the closest vehicular or
pedestrian arrival point. 56 FR at 9504.
The UBC does not reflect this requirement in Section 1103.1.9.3
Exception 5. The UBC's corresponding provision states that the
accessibility requirements shall not apply to a site where the lowest
floor or the lowest structural building members is required to be at or
above the base flood elevation resulting in a difference in elevation
between the minimum required floor elevation at the primary entrances
and vehicular and pedestrian arrival points within 50 feet exceeding 30
inches, OR a slope exceeding 10 percent between the minimum required
floor elevation at the primary entrances and vehicular and pedestrian
arrival points within 50 feet. The Guidelines specify that the
difference in finished grade elevation must be both 30 inches and 10
percent.
Recommendation Number 6 (Draft Recommendation 10)
It is recommended that Section 1103.1.9.3, Exception 5, be modified
as follows:
5.1 A difference in elevation between the minimum required
floor elevation at the primary entrances and vehicular and
pedestrian arrival points within 50 feet (15 240 mm) exceeding 30
inches (762 mm), AND * * *
Requirement 2: Accessible and Usable Public and Common Use Areas
The Act and the regulations provide that covered multifamily
dwellings with a building entrance on an accessible route be designed
and constructed in a manner so that the public and common use areas are
readily accessible to and usable by people with disabilities. 42 U.S.C.
3604 (f)(3)(C)(i); 24 CFR 100.205(c)(1). The Guidelines' Requirement 2
cites the appropriate section of the ANSI A117.1-1986 Standard for the
technical provisions for 15 accessible elements or spaces, and
describes the application of the specifications including modifications
to the referenced Standard. 56 FR at 9505.
Following are the 15 basic elements or spaces for accessible and
usable public and common use areas or facilities:
Accessible routes
Protruding objects
Ground and floor surface treatments
Parking and passenger loading zones
Curb ramps
Ramps
Stairs
Elevators
Platform lifts
Drinking fountains and water coolers
Toilet rooms and bathing facilities
Seating, tables, or work surfaces
Places of assembly
Common-use spaces and facilities
Laundry rooms
56 FR at 9505. When a variance is identified in the UBC that does not
meet the requirements of the Guidelines for each of the 15 elements or
spaces above, it is noted below.
Preliminarily, it is noted that Section 1103.1.9.1, General,
provides that rooms and spaces available to the general public and
spaces available for the use of residents that serve Group R, Division
1 occupancy accessible dwelling units shall be accessible. This section
does not require accessibility in rooms and spaces available to the
general public in Group R, Division 3 occupancies which are covered by
Section 1103.1.9.3, Multi-unit dwellings. This is not equivalent to the
accessibility provisions of the Guidelines.
Recommendation Number 7 (Draft Recommendation 11)
It is recommended that the UBC modify Section 1103.1.9.1, General,
by including Group R, Division 3 occupancies as follows:
Section 1103.1.9.1, General:
Group R Occupancies shall be accessible as provided in this
chapter. Rooms and spaces available to the general public and spaces
available for the use of the residents that serve accessible
dwelling units and accessible guest rooms in Group R, Division 1 and
Division 3 occupancies shall be accessible.
Accessible Route(s)
Vehicular Route--(Draft Recommendation Number 12)
Requirement 1, paragraph (5) of the Guidelines states that if the
slope of the finished grade between covered multifamily dwellings and a
public or common use facility exceeds 8.33%, or where other physical
barriers or legal restrictions, all of which are outside the control of
the owner, prevent the installation of an accessible pedestrian route,
an acceptable alternative is to provide access via a vehicular route,
so long as necessary site provisions such as parking spaces and curb
ramps are provided at the public or common use facility. 56 FR at 9504.
The UBC Section 1103.2.2 contains language which is comparable to
the Guidelines with one exception. That section states:
For Group R, Division 1 apartment occupancies, when the slope of
the finished grade between accessible buildings and facilities exceeds
1 unit vertical in 12 units horizontal (8.33% slope), or when physical
barriers of the site prevent the installation of an accessible route, a
vehicular route with parking at each accessible building or facility
may be provided in place of the accessible route.
The UBC does not include language making it clear that accessible
parking must be available at the accessible facility if access is
provided by a vehicular route.
Recommendation Number 8 (Draft Recommendation 12)
It is recommended that the UBC Section 1103.2.2, Accessible route,
be modified to include the following language:
[[Page 15773]]
If the slope of the finished ground level between accessible
facilities and buildings exceeds one unit vertical in 12 units
horizontal, or where physical barriers prevent the installation of
an accessible route, a vehicular route with accessible parking
spaces in accordance with Appendix Chapter 11 at each public or
common use facility or building is permitted in place of the
accessible route.
Headroom--(Draft Recommendation Number 13)
Based on the public comments received, the Department has
determined that the UBC adequately addresses this issue.
Parking and Passenger Loading Zones--(Draft Recommendation Numbers 14,
15 and 16)
Division I of Appendix Chapter 11 includes the only provisions for
accessible parking and passenger loading zones. These provisions do not
apply if the appendix is not specifically adopted. Therefore, a
jurisdiction that adopted the UBC 1997 without the Appendix would not
meet the accessibility requirements of the Act, regulations and
Guidelines.
Recommendation Number 9 (Draft Recommendation 14)
It is recommended that Appendix Chapter 11 be automatically adopted
by a jurisdiction that adopts UBC 1997.
The Questions and Answers About the Guidelines (Question and Answer
14c) state that where there are several individual parking garages
grouped together either in a separate area of the building (such as at
one end of the building, or in a detached building), for assignment or
rental to residents, at least 2% of the garages must be at least 14'2"
wide and have a vehicular door at least 10' wide. 59 FR at 33366. This
requirement assumes that garage parking is the only type of parking
provided at the site.
Question and Answer 14c provides the minimum requirement for the
width of accessible garages and garage doors. The minimum widths
provide enough space for an automobile to enter the garage, and for a
passenger or driver using a wheelchair to exit through the garage door
without interference by the automobile. However, the minimum
requirements do not preclude a garage design that provides equivalent
or greater accessibility. For example, a designer may choose to design
a garage with a door that is 8 feet wide, but include a separate
accessible exit door through which the driver or the passenger may
exit, provided that it connects to the accessible route to the entrance
of the unit.
The UBC does not provide minimum requirements for these garages,
and therefore, does not meet provision of the Guidelines.
The Guidelines provide that if provided at the site, there must be
accessible visitor parking sufficient to provide access to grade level
entrances of covered multifamily dwellings, and accessible parking at
facilities. The Guidelines also require accessible parking on the same
terms and with the full range of choices (e.g., surface parking or
garage) that are provided to other residents of the project. 56 FR at
9505.
In addition, the Questions and Answers About the Guidelines provide
further clarification of the parking requirements at Q&A 14(b) by
stating that when more than one type of parking is provided, at least
one space for each type of parking should be made accessible even if
this number exceeds 2%.
The Department is not recommending that the UBC revise any of its
broader scoping requirements for parking. However, the UBC does not
include comparable language in Appendix Chapter 11 with respect to the
above variances. Therefore, the UBC does not meet the provisions of the
Guidelines with respect to these issues.
Recommendation Number 10 (Draft Recommendation 15)
In order to address the inconsistencies outlined above, it is
recommended that the UBC add the following language to Section 1108:
At least 2% of parking garages provided for R-2 and R-3
occupancies required to have Type B dwelling units or Type B guest
rooms, where there are several individual garages grouped together,
either in a separate area of a building or in a detached building,
for assignment or rental to residents, must be at least 14'2" wide
and have a vehicular door at least 10' wide.
Where accessible parking spaces are provided, at least one of
each type (surface parking, carports, or garage) shall be provided.
Where visitor parking is provided, at least one accessible visitor
parking space shall be provided.
Where parking is provided at public and common use facilities
that serve accessible buildings, at least one accessible parking
space shall be provided.
and modify the third provision under Section 1108 as follows:
3. For Group R, Division 1 and Group R, Division 3 occupancies
containing accessible or adaptable dwelling units or guest rooms
intended to be occupied as a residence, where parking is provided, 2
percent of the parking spaces shall be accessible * * *
In addition, Section 1108.3, Signs, provides an exception which
states that accessible parking space signs need not be provided in
parking garages or parking facilities that have five or less total
parking space. This exception does not meet the requirements of the
Guidelines which requires signage at all accessible parking space.
Recommendation Number 11 (Draft Recommendation 16)
It is recommended that the UBC delete this exception. If this
exception is deleted from the charging paragraph, then signs will be
required at all accessible parking spaces.
Elevators--(Draft Recommendation Numbers 17 and 18)
The Guidelines require that elevators on accessible routes be
accessible according to the technical specifications of ANSI A117.1,
Section 4.10, Elevators. 56 FR at 9505. Section 1105.3 of the UBC,
Elevators and Stairway and Platform Lifts, states that elevators on an
accessible route shall be accessible. It also states that elevators
required to be accessible shall be designed and constructed to comply
with CABO/ANSI A117.1-1992. The technical specifications for elevators
required by both the Guidelines and the UBC are equivalent.
However, the UBC provides an exception to Section 1105.3 which
states that private elevators serving only one dwelling unit need not
be accessible. This does not meet the requirements of the Guidelines
because elevators within multistory units must provide accessibility.
Recommendation Number 12 (Draft Recommendation 17)
It is recommended that the exception under Section 1105.3 be
deleted.
The UBC provides an exception to Section 1104.1.3, Elevators, which
states that elevators need not be provided to floors provided with a
horizontal exit and located at or above the level of exit discharge in
fully sprinklered buildings. This exception does not meet the
requirements of the Guidelines that requires elevators, if provided to
units other than the ground floor, provide access to all floors.
Recommendation Number 13 (Draft Recommendation 18)
It is recommended that the exception under Section 1104.1.3 be
deleted.
Laundry Rooms--(Draft Recommendation Number 19)
The Guidelines state that if provided in the facility or at the
site, at least one of each type of appliance provided in each laundry
area shall be accessible.
[[Page 15774]]
UBC Section 1103.1.9.1, General, states that Group R Occupancies shall
be accessible as provided in Chapter 11. Rooms and spaces available to
the general public and spaces available for the use of residents that
serve Group R, Division 1 Occupancy accessible dwelling units, which
includes laundry facilities, shall be accessible. The UBC does not
include Group R, Division 3 occupancies in Section 1103.1.9.1, which
does not meet the requirements of the Guidelines.
Recommendation Number 14 (Draft Recommendation Number 19)
It is recommended that Section 1103.1.9.1 be modified to include
Group R, Division 3 occupancies.
Recreational Facilities
The Guidelines, in Requirement 2, state that: ``If provided in the
facility or at the site; (a) where multiple recreational facilities
(e.g., tennis courts) are provided sufficient accessible facilities of
each type to assure equitable opportunity for use by persons with
handicaps' shall be provided. These facilities must be connected by an
accessible route to the covered dwelling units or a vehicular route if
an accessible route is not possible.'' The UBC Section 1103.1.9.1
requires 25%, but not less than one, of recreational facilities of each
type in each group to be accessible.
The Department concludes that the Guidelines may be interpreted to
be stricter than the requirements of the UBC with respect to the
requirement for accessible recreational facilities because an
interpretation of ``sufficient to provide equitable opportunity for
use'' may result in determinations that recreational facilities that
serve different buildings containing accessible dwelling units must be
accessible, even if this means making all of the same type of
recreational facility accessible (such as two swimming pools on a large
site, each of which serves different buildings on the site).
For example, one out of four recreational facilities of the same
type serving a specific residential use group is code compliant (25%
but not less than one), but may not be considered ``sufficient'' by the
Department if the facilities of the same type are widely spread across
a large site serving one building, or spread across a site on which
there are multiple buildings.
However, because this matter was not included in the draft reports,
and there has not been an opportunity for public participation in a
resolution of this matter, the Department is not including a
recommendation to resolve this matter. The Department will work with
all interested parties to address this matter.
Requirement 3: Usable Doors
The Act and regulations require that all doors designed to allow
passage into and within a covered dwelling unit be sufficiently wide to
allow passage by persons in wheelchairs. 42 U.S.C. Sec. 3604
(f)(3)(C)(ii); 24 CFR 100.205(c)(2). The Guidelines set forth criteria
to meet this requirement. The Guidelines also set forth additional
guidance regarding doors that are a part of an accessible route in the
public and common use areas of multifamily dwellings and to doors into
and within individual dwelling units. 56 FR at 9506.
The Guidelines provide the following:
On accessible routes in public and common use areas, and for
primary entry doors to covered units, doors that comply with ANSI
A117.1 4.13 will meet the Act's requirements for usable doors; and
Within individual dwelling units, doors intended for user passage
through the unit which have a clear opening of at least 32 inches
nominal width when the door is open 90 degrees, measured between the
face of the door and the stop, would meet the Act's requirement.
The Department has determined that the UBC meets the requirements
of the Act, regulations, and the Guidelines for usable doors.
Requirement 4: Accessible Route Into and Through the Covered
Dwelling Unit
The Act and regulations require that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed and constructed in such a manner that all premises within
covered multifamily dwelling units contain an accessible route into and
through the covered dwelling unit. 42 U.S.C. Sec. 3604
(f)(3)(C)(iii)(I); 24 CFR 100.205 (c)(3)(i). Requirement 4 of the
Guidelines sets forth criteria to meet this requirement. 56 FR at 9509-
10. The UBC meets the provisions of the Act, regulations, and
Guidelines with respect to Requirement 4, except the following.
Multistory Units Served by Elevators--(Draft Recommendation Number 20)
Among the criteria for Requirement 4 is the provision that in
multistory dwelling units in buildings with elevators, the story of the
unit that is served by the building elevator is the primary entry to
the unit. 56 FR at 9507.
One of the UBC's exceptions to the requirement for Type B units
provides, in Section 1103.1.9.3, as follows:
A multistory dwelling unit not provided with elevator service is
not required to comply with requirements for Type B dwelling units.
Where a multistory dwelling unit is provided with elevator service
to only one floor, the floor provided with elevator service shall
comply with the requirements for a Type B dwelling unit, and a
toilet facility shall be provided on that floor.
The UBC does not mention in this exception that where a multistory
dwelling unit is provided with elevator service, the story served by
the elevator must be the primary entry to the unit. As a result, the
UBC does not meet the requirements of the Guidelines in terms of the
exceptions for multistory units in buildings served by elevators.
Recommendation Number 15 (Draft Recommendation 20)
It is recommended that the UBC modify Section 1103.1.9.3, Exception
3 as follows:
1103.1.9.3 Multi-unit dwelling: A multistory dwelling unit not
provided with elevator service is not required to comply with
requirements for Type B dwelling units. Where a multistory dwelling
unit is provided with elevator service to only one floor, the floor
provided with elevator service shall be the primary entry to the
unit, shall comply with the requirements for a Type B dwelling unit,
and a toilet facility shall be provided on that floor.
Requirement 5: Light Switches, Electrical Outlets, Thermostats, and
Other Environmental Controls in Accessible Locations
The Act and regulations require that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed and constructed so that all premises within the covered units
contain light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations. 42 U.S.C. Sec. 3604
(f)(3)(C)(iii)(II); 24 CFR 100.205. Requirement 5 of the Guidelines
sets forth criteria to meet these requirements. The UBC meets the
provisions of the Act, regulations, and Guidelines with respect to
Requirement 5.
Requirement 6: Reinforced Walls for Grab Bars
Requirement 6 of the Guidelines sets forth technical specifications
to meet the requirements of the Act at 42 U.S.C. 3604
(f)(3)(C)(iii)(III) and the regulations at 24 CFR 100.205(c)(3)(iii),
which specifies that all covered multifamily dwellings with a building
entrance on an accessible route shall be designed and constructed so
that all premises within the covered units contain reinforcements in
bathroom walls to allow later installation of grab bars around toilet,
tub, shower stall and
[[Page 15775]]
shower seat, where such facilities are provided. 56 FR at 9509-10.
Although it is the intent of the UBC at Section 1106.6.3 to require
grab bar reinforcement at fixtures located away from walls, sunken or
raised tubs for example, the UBC is not clear on this issue.
Recommendation Number 16 (Draft Recommendation 21)
It is recommended that the UBC modify Section 1106.6.3, Toilet and
bathing fixtures by adding the following:
Where fixtures are located away from walls alternative
reinforcement complying with CABO/ANSI A117.1 4.24.2.5 and 4.24.3 shall
be provided for the mounting of grab bars.
Requirement 7: Usable Kitchens and Bathrooms
The Act and regulations provide that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed to have usable kitchens and bathrooms such that an individual
in a wheelchair can maneuver about the space. 42 U.S.C. Sec. 3604
(f)(3)(C)(iii)(IV); 24 CFR 100.205. Requirement 7 of the Guidelines
sets forth technical criteria to meet those requirements. 56 FR at
9511-15.
Usable Kitchens--(Draft Recommendation Number 22)
The Guidelines address a parallel approach to kitchen sinks in
Requirement 7 at 56 FR at 9511. The parallel approach to the sink is
addressed in Figure 7(c). 56 FR at 9514. The ANSI A117.1-1986 standard
requires, with respect to sinks and lavatories, a forward approach with
clear floor space below, and illustrates the forward approach centered
on the sink/lavatory. (ANSI A117.1 1986, Fig.32 on page 50.) The
Department's Guidelines allowed a departure from the ANSI standard. 56
FR at 9511-12. The Guidelines permit the clear floor space to be
designed for a parallel position. While the Guidelines only show the
clear floor space centered on the lavatory [Fig. 7 (c)], it is equally
applicable to the sink.
UBC Section 1106.5.2, Clear floor space, requires that a 30-inch-
by-48-inch minimum clear floor space be provided at the sink and at
each appliance. Provision 1, under Section 1106.5.2, states that the
clear floor space at the sink shall be positioned for a parallel
approach which must extend 15 inches minimum from each side of the sink
centerline. This does not meet the requirements of the Guidelines. The
Guidelines require the centering of the parallel approach on the sink.
Recommendation Number 17 (Draft Recommendation 22)
It is recommended that the UBC delete the 15-inch offset
requirement and modify Provision 1, Section 1106.5.2, Clear floor space
as follows:
1. The clear floor space at the sink shall be positioned for a
parallel approach. The clear floor space shall be centered on the sink.
Usable Bathrooms--(Draft Recommendation Number 23)
The Guidelines provide two options for designing accessible
bathrooms. The first option requires a minimal level of accessibility.
This option requires that walls be reinforced for grab bars and
sufficient maneuvering space be provided within the bathroom for a
person using a wheelchair or other mobility aid to enter, close the
door, use the fixtures, reopen the door and exit. 56 FR at 9511.
The second option for designing accessible bathrooms provides a
greater level of accessibility than that provided by the first option.
The second option requires that they have reinforced walls for grab
bars, clear space at specific locations within the bathroom to permit
use of the fixtures, and specific clearances for fixtures. 56 FR at
9511.
According to the Guidelines, for covered multistory dwellings in
elevator buildings, only bathrooms on the accessible level are subject
to the requirements. If a powder room is the only facility provided on
the accessible level of a multistory dwelling unit, it must comply with
the first or second option for designing accessible bathrooms and have
reinforcement for grab bars.
As discussed in reference to kitchens above, the Guidelines require
the centering of the parallel approach on the lavatory. 56 FR at 9512.
The UBC requires an offset of 15 inches which does not meet the
Guidelines' requirement.
Recommendation Number 18 (Draft Recommendation 23)
It is recommended that the reference to 15 inches be deleted from
Sections 1106.6.4.1.1, Lavatory, and Section 1106.6.4.2.1, Lavatory,
and replaced with the following:
* * * Clear floor space positioned for a parallel approach shall
be centered on the lavatory.
Chapter 5: Standard Building Code Analysis
I. Purpose
The purpose of this report is to identify provisions of the 1997
edition of the Standard Building Code (SBC), published by the Southern
Building Code Congress International (SBCCI) that do not meet the
requirements of the Fair Housing Act (Act), the Fair Housing Act
regulations, or the Fair Housing Accessibility Guidelines (the
Guidelines). Where variances are identified, Steven Winter Associates,
Inc. (SWA) recommends how they may be revised to meet the requirements
of the Act, the Fair Housing Act regulations, or the Guidelines. The
1999 edition of the SBC was published on January 29, 1999. A review of
the 1999 edition of the SBC is not part of the scope of the following
analysis.
II. Methodology
The analysis of the SBC consisted of the following:
--A review of the language of the Act, 42 U.S.C. 3604 (f)(3)(C), the
Fair Housing Act regulations at 24 CFR 100.201 and 205, the Fair
Housing Accessibility Guidelines, 56 FR at 9472-9515, and the June 28,
1994 Supplement to Notice of Fair Housing Accessibility Guidelines:
Questions and Answers About the Guidelines, 59 FR at 33362-33368 (the
Questions and Answers About the Guidelines);
--A review of the December 15, 1997 copyrighted comparative matrix
developed by the International Code Council (ICC), Building Officials &
Code Administrators International (BOCA), International Conference of
Building Officials (ICBO), Southern Building Code Congress
International (SBCCI), and the Council of American Building Officials
(CABO). The matrix, which was included with HUD's Request for
Quotations for this analysis consists of a side-by-side comparison of
the Guidelines with the corresponding accessibility provisions of the
three model building codes and the SBC. SWA began its analysis of the
SBC by reviewing the column of the matrix that includes the SBC's
accessibility requirements and comparing them with the column that
includes the provisions of the Guidelines. The matrix review was
conducted to identify apparent variances between SBC's accessibility
requirements and those of the Act, regulations, and Guidelines.
-- A review of the accessibility provisions of the 1997 edition of the
Standard Building Code (herein referred to as the SBC); and a review
[[Page 15776]]
of applicable referenced codes and standards, including: American
National Standards Institute (ANSI) A117.1-1986, which is referenced in
the regulations, and CABO/ANSI A117.1-1992, the title of the standard
referenced by the SBC. Because the matrix did not include full text of
the technical provisions, it was necessary to use these standards as
companion documents in assessing the matrix, the Guidelines, and the
SBC. They were reviewed to identify any variances from the Act,
regulations, or Guidelines in the technical provisions required by
each.
--Interviews with John Battles, Vice-President, Technical Services, to
gain insight into how the SBC responds to variances that SWA
identified. SWA found it necessary to understand SBCCI's
interpretations of its own requirements that may not be apparent when
reviewing code text.
The original analysis of the SBC was submitted to HUD on September
27, 1999. HUD formed a Model Code Working Group consisting of
representatives from the Office of Fair Housing and Equal Opportunity,
the Office of General Counsel; and the Office of Housing. A
representative of the U.S. Department of Justice also participated on
the Working Group. The Working Group met with SWA on September 29,
1999, and asked questions and made comments and suggestions about the
analysis.
The draft report was made available for public comment on October
26, 1999, and a public meeting on the draft reports was held on
November 10, 1999. Written comments on the report were received. All
comments were reviewed and considered. This final report incorporates
many of those comments and has been revised from the draft report.
III. The Standard Building Code
The SBCCI administers the SBC series of model regulatory
construction codes. Compliance with the SBC model building code is not
required unless adopted by reference by a jurisdiction's board,
council, or other authoritative governing body.
The 1997 SBC includes provisions for accessibility intended to
reflect the intent of the Guidelines. The 1994 SBC was the first
attempt at codifying the Fair Housing Act accessibility requirements.
Type B dwelling units accessibility criteria was codified in the 1997
SBC.
Unlike the Fair Housing Act, the SBC is a model building code and
not a law. It provides minimum standards for public safety, health and
welfare as they are affected by building construction. Compliance with
the SBC is not required unless adopted by reference by a jurisdiction's
board, council, or other authoritative governing body. Jurisdictions
may adopt a model building code in its entirety or with modifications;
hence, the building codes are referred to as ``model codes.''
Historically, model building codes have required that a certain
percentage or number of dwelling units in defined residential uses meet
the standards for full accessibility as defined by ANSI A117.1. These
dwelling units are referred to in the SBC in Section 202 as a ``Type A
dwelling unit.'' A ``Type B dwelling unit,'' which is defined in
Section 202 as ``a dwelling unit designed and constructed for
accessibility in accordance with 1110'' is an attempt to incorporate
the requirements of the design and construction requirements of the
Act, the regulations, and the Guidelines. The SBC refers to CABO/ANSI
A117.1-1992 for the technical provisions for Type B units.
It is the Department's understanding that SBCCI will no longer
publish subsequent updates to the latest version of the SBC. The four
model code organizations have joined with the ICC to produce one
international building code under the ICC, the first of which will be
published as the International Building Code 2000 early in the year
2000.
IV. Scoping Provisions
Building codes have two major components that are relevant to this
analysis. One component describes the technical standards that should
be applied during the design and construction or alteration of a
building or structure or elements within a structure. The other
component is a description of the types of buildings or structures or
elements within a structure to which the technical standards are
applied. The provisions in this second component are referred to as
``scoping'' provisions. This section of the analysis sets forth areas
where the scoping provisions of the SBC do not include all of the
dwelling units, buildings, or uses that are covered by the Act, the
regulations, or the Guidelines. This analysis of the scoping provisions
of the SBC included an examination of the following:
SBC's definition of dwelling unit, building, structure, and ground
floor dwelling unit;
SBC's classification of residential buildings according to use and
occupancy; and
SBC's scoping of dwelling units to which the accessibility provisions
apply.
This analysis concludes that the SBC covers most of the same
dwelling units, buildings and residential uses as the Act, regulations,
and Guidelines. For example, SWA concluded that, in buildings with four
or more dwelling units, apartments, custom-designed condominiums,
multistory units with internal elevators, single story townhouses, and
modular units are covered. Additions of four or more units to existing
buildings are included within the SBC's scoping requirements for Type B
dwelling units. However, the Department has concluded that the
following provisions of the SBC do not or may not include ``covered
multifamily dwellings'' as they are defined in the Act, regulations, or
Guidelines. 42 U.S.C. Sec. 3604 (f)(7); 24 CFR 100.201; 56 FR at 9500.
SBC Classification of Residential Use Groups
The SBC defines residential occupancies (Group R occupancies), in
section 311.2 of the code, as follows:
R1: Residential occupancies where the occupants are primarily transient
in nature including:
Boarding houses (transient)
Hotels
Motels
R2: Multiple dwellings where the occupants are primarily permanent in
nature, including:
Apartment houses
Convents
Dormitory facilities which accommodate six or more persons of more
than 2\1/2\ years of age who stay more than 24 hours
Fraternities
Monasteries
Rectories
Rooming houses (not transient)
R3: Residential occupancies including the following:
Child care facilities which accommodate five or less children of
any age for any time period
One and two family dwellings where the occupants are primarily
permanent in nature and not classified as R1, R2, or I
Rooming houses (transient)
R4: Residential Care/Assisted Living Facilities housing six or more
occupants on a 24 hour bases; these occupancies include the following:
Alcohol and drug abuse centers
Assisted living facilities
Congregate care facilities
Convalescent facilities
Halfway houses
[[Page 15777]]
Group homes
Residential board and care facilities
Social rehabilitation facilities
According the SBC, Group R2 occupancies containing four or more
dwelling units and Group R3 occupancies where there are four or more
dwelling units in a single structure, all dwelling units shall be Type
B dwelling units. Type B dwelling units are defined as units that are
designed and constructed for accessibility in accordance with Section
1110, Chapter 11, Accessibility. Section 1110, Type B dwelling units
provides the design and construction requirements for Type B units.
Definition of Dwelling Unit--(Draft Recommendation Number 1)
The regulations define the term ``dwelling unit'' as:
a single unit of residence for a family of one or more persons.
Examples of dwelling units include: a single family home; an
apartment unit within an apartment building; and in other types of
dwellings in which sleeping accommodations are provided but
toileting or cooking facilities are shared by occupants of more than
one room or portion of the dwelling, rooms in which people sleep.
Examples of the latter include dormitory rooms and sleeping
accommodations in shelters intended for occupancy as a residence for
homeless persons.
24 CFR 100.201.
It is clear from the discussion in the Preamble to the Regulations,
found at 54 FR at 3244, that the Department intended that each sleeping
room intended for occupancy by a separate household in a building with
shared toileting or kitchen facilities would be considered a separate
dwelling unit, and that buildings with four or more of these sleeping
accommodations are ``covered multifamily dwelling units'' for purposes
of the Act.
Of course, a detached building that has four or more sleeping rooms
with shared toileting or kitchen facilities and that is intended for
occupancy by one household is not considered to be a ``covered
multifamily dwelling'' under the Act. For example, a detached single
family house with four bedrooms occupied by four or more persons
related by birth or marriage is not a covered multifamily dwelling. In
addition, a single family house occupied by four or more unrelated
persons that functions as one distinct household, such as what is
commonly referred to as a ``group home'' would not be considered to be
a ``covered multifamily dwelling'' for purposes of the application of
the design and construction requirements of the Act. This latter
example is consistent with case precedent and the position of the
Department and the Department of Justice with respect to the
application of zoning and land use restrictions to single family group
homes.
The SBC defines the term ``dwelling unit'' in Chapter 2,
Definitions, as follows:
A single unit providing complete, independent living facilities for
one or more persons including permanent provisions for living,
sleeping, eating, cooking and sanitation.
As a result, many of the examples of R2 and R3 residences provided
by the SBC are not covered by the accessibility provisions in Section
1105.4.2 because they do not fall under the SBC's definition of
``dwelling unit.'' A dwelling unit, according to interviews with John
Battles, Vice-President, Technical Services at SBCCI, cannot have
sleeping rooms with shared common facilities. For example, the SBC
lists convents, dormitory facilities which accommodate six or more
people who stay more than 24 hours, fraternities, sororities,
monasteries, rectories, and rooming houses (not transient), as examples
of R2 occupancies. However, if these uses are composed of sleeping
rooms with shared toileting or cooking, they do not fall under the
SBC's definition of ``dwelling unit.'' Mr. Battles confirmed that the
only occupancy examples that fall under the SBC's definition of
``dwelling unit'' are apartment houses (R2) and one and two family
dwellings (R3).
In its draft report, SWA proposed revising the SBC definition of
``dwelling unit'' to be consistent with the regulations, to include
sleeping rooms occupied by separate households. In response to comments
on the draft report, the Department has determined that it would
withdraw this recommendation. Instead, the Department proposes that the
SBC be revised to include a new term; ``sleeping unit.'' The scoping
requirements of Chapter 11 have been revised to add references to both
dwelling and sleeping units. Therefore, the former Recommendation
Number 1 has been eliminated.
Recommendation Number 1 (Draft Recommendation Number 1)
It is recommended that the SBC be revised to add a definition to
202 as follows:
Sleeping unit: A room in which people sleep intended to be
occupied as a residence.
Transient Housing--(Draft Recommendation Number 2)
In Draft Recommendation 2, it was recommended that the SBC be
revised to make clear that certain types of housing that may be viewed
as transient are dwellings subject to the requirements of the Fair
Housing Act, including the design and construction requirements. This
housing may include timeshares, residential hotels and motels, boarding
houses, and homeless shelters. The SBC does not define what
``transient'' means, though it uses this term in specifying what
occupancies come within the R1 Use Group. According to Section
1105.4.2, the SBC accessibility provisions apply to Group R2 and R3
occupancies, but not Group R1. Since transient boarding houses and non-
transient hotels and motels are classified as R1, they are not covered
by Chapter 11. The SBC classifies transient rooming houses as R2 but
classifies transient boarding houses as R1. The basis for this
distinction in the code is unclear. However, according to Mr. Battles,
hotels and boarding houses would not be covered under the provisions of
Section 1105.4.2, apparently under any circumstances. Therefore, the
SBC does not meet the requirements of the Act, the regulations, or the
Guidelines. To make clear that boarding houses, hotels and motels that
are not transient are subject to the Act's design and construction
requirements and should meet chapter 11's requirements as well, it was
suggested that the SBC be revised. Accordingly, draft Recommendation 2
suggested that these three occupancies and non-transient homeless
shelters be added to the list of occupancies in the R2 Use Group.
Factors that should be considered in determining whether an
occupancy is transient or not are: (1) Length of stay; (2) Whether the
rental rate for the unit will be calculated based on a daily, weekly,
monthly or yearly basis; (3) Whether the terms and length of occupancy
will be established through a lease or other written agreement; (4)
What amenities will be included inside the unit, including kitchen
facilities; (5) How the purpose of the property is marketed to the
public; (6) Whether the resident possesses the right to return to the
property; and (7) Whether the resident has anywhere else to which to
return.
Accordingly, because the above-described types of housing which are
subject to the Act are not required to meet the SBC's Chapter 11
requirements, the SBC is not consistent with the Act, its regulations
and the
[[Page 15778]]
Guidelines. At this time, the Department is uncertain how best to
resolve this inconsistency between the SBC and the Department's
regulations. Therefore, the Department is withdrawing its draft
recommendation on this issue. However, HUD will continue to work with
the SBC and other interested code organizations to develop language
that appropriately conveys to builders and designers that certain
short-term residencies must meet the Act's accessibility requirements.
In the meantime, the Department believes the above factors must be
considered by owners, builders, and architects in determining whether
the requirements of the Act apply to the design and construction of
buildings with rooms for short term occupancy.
Continuing Care Facilities--(Draft Recommendation Number 3)
The Act defines a ``dwelling'' as ``any building, structure, or
portion thereof which is occupied as, or designed or intended for
occupancy as, a residence by one or more families* * *''. 42 U.S.C.
3602 (b). Such a building may serve more than one purpose. Some
buildings, known as continuing care facilities, residential care
facilities, or assisted living facilities, serve both as a residence
for their occupants and as a place where the occupants receive
personal, medical or other support services.
As mentioned in the discussion of transient residential uses above,
the Questions and Answers About the Guidelines addressed the issue of
whether the design and construction requirements of the Act apply to
continuing care facilities which incorporate housing, health care and
other types of services. That publication states:
The new construction requirements of the Fair Housing Act would
apply to continuing care facilities if the facility includes at
least one building with four or more dwelling units. Whether a
facility is a ``dwelling'' under the Act depends on whether the
facility is to be used as a residence for more than a brief period
of time. As a result, the operation of each continuing care facility
must be examined on a case by-case basis to determine whether it
contains dwellings. Factors that the Department will consider in
making such an examination include, but are not limited to: (1) The
length of time persons stay in the project; (2) whether policies are
in effect at the project that are designed and intended to encourage
or discourage occupants from forming an expectation and intent to
continue to occupy space at the project; and (3) the nature of the
services provided by or at the project.
59 FR at 33364.
As a result of the application of these factors, and the
regulations' definition of ``dwelling unit,'' the Department considers
that residential care/assisted living facilities with four or more
dwelling units, including sleeping rooms occupied by separate
households with shared toileting or kitchen facilities, and nursing
homes, to be ``covered multifamily dwellings'' for purposes of the
accessibility requirements of the Act.
The SBC classifies residential care/assisted living facilities as
R4 residential uses. Section 202 of the Code defines Residential Care/
Assisted Living Occupancies as follows:
A building or part thereof housing six or more persons, on a 24
hour basis, who because of age, mental disability or other reasons,
live in a supervised residential environment which provides personal
care and supportive services. The occupants are mostly capable of
responding to an emergency situation without assistance from staff.
And this occupancy subclassification shall include residential board
and care facilities, assisted living facilities, halfway houses,
group homes, congregate care facilities, social rehabilitation
facilities, alcohol and drug abuse centers and convalescent
facilities.
There are no scoping provisions in Chapter 11 related to the R4
classification. R4 occupancies are not covered under Section 1105.4.2.
It is unclear whether this is an oversight, or whether all R4
occupancies are covered under some other accessibility standard.
Recommendation Number 2 (Draft Recommendation Number 2)
It is recommended that the definition of ``sleeping unit''
contained in Recommendation Number 1 be adopted and Section 1105.4 be
modified to add a new section, that provides the following, in addition
to any other applicable accessibility criteria under Section 504 of the
Rehabilitation Act of 1973 and the Americans with Disabilities Act of
1990:
In R4 occupancies, all ground floor dwelling and sleeping units
in structures of four or more dwelling or sleeping units that are
not served by elevators, and all dwelling and sleeping units in
structures of four or more dwelling and sleeping units served by
elevators shall be Type B.
Nursing homes occupied by six or more persons (both intermediate
care facilities and skilled nursing facilities) are classified in
section 309.1 of the code as Group I Unrestrained Occupancy. This
classification is defined below:
Group I Unrestrained Occupancy. Group I Unrestrained included
buildings or portions thereof used for medical, surgical,
psychiatric, nursing, or custodial care on a 24 hour basis of six or
more persons who are not capable of self-preservation. Facilities
with five or less persons not ancillary to other uses are classified
as a residential occupancy.
The relevant accessibility standards required for Group I
(Unrestrained, Section 1105.3.3, 1105.3.5) are as follows:
Group I Institutional
1105.3.3: In Group I Unrestrained nursing homes, at least 50%,
but not less than one, of the patient sleeping rooms and their
bathing and toilet facilities shall be accessible.
1105.3.5: In Group I Unrestrained occupancies, at least one
accessible entrance shall include a passenger loading zone complying
with CABO/ANSI A117.1-1992.
Recommendation Number 3 (Draft Recommendation Number 4)
To ensure that the SBC covers the same dwelling units required to
provide accessibility according to the Act, the regulations, and the
Guidelines, it is recommended that the SBC be revised as follows:
Modify Sections 1105.3.3, 1105.4.1, 1105.4.2, 1105.4.3 as
follows:
1105.3.3: Group I Unrestrained nursing homes, at least 50%, but
not less than one, of the patient sleeping rooms and their bathing
and toilet facilities shall be accessible. In addition, in
unrestrained nursing homes of Group I, in structures with four or
more sleeping units, sleeping units shall comply with the
requirements for Type B sleeping units as required by 1107.4.2 with
the same exceptions as provided for in Section 1107.4.2.
1105.4.1: In Group R1 occupancies containing 6 or more guest
rooms, one for the first 30 guest rooms and one additional for each
additional 100 guest rooms or fraction thereof shall be accessible.
In hotels with more than 50 sleeping rooms or suites, roll-in type
showers shall be provided in one-half, but not less than one, of the
required accessible sleeping rooms or suites. In addition, in Group
R1 occupancies in structures with four or more sleeping units,
sleeping units shall comply with the requirements for Type B
sleeping units as required by 1107.4.2 with the same exceptions as
provided for in Section 1107.4.2.
1105.4.2: In Group R2 occupancies containing four or more
dwelling or sleeping units and Group R3 occupancies where there are
four or more dwelling or sleeping units in a single structure, all
dwelling and sleeping units shall be Type B. In Group R2 occupancies
containing more than 20 dwelling units, at least 2%, but not less
than one, of the dwelling units shall be Type A dwelling units. All
dwelling and sleeping units on a site shall be considered to
determine the total number of accessible dwelling and sleeping
units.
1. Requirements for Type B dwelling and sleeping units shall not
apply to dwelling or sleeping units that are both located above the
[[Page 15779]]
first level containing dwelling or sleeping units and that are not
provided with elevator access thereto.
2. A multistory dwelling unit * * *
3. The required number of Type B dwelling and sleeping units
provided in multiple nonelevator buildings on a single site is
allowed to be reduced to a percentage of the ground floor dwelling
units which is equal to the percentage of the entire site having
grades, prior to development, which are less than 10 percent, but in
no case shall the number of Type B dwelling and sleeping units be
less than 20% of the ground floor dwelling and sleeping units on the
entire site.
4. The required number of Type A and Type B dwelling and
sleeping units * * *
1105.4.3 Rooms and spaces available for the use of residents and
which serve accessible dwelling or sleeping units shall be
accessible. Exception: Group homes intended to be occupied by a
single household and detached single-family homes occupied by a
single household.
Note: See other changes to Exceptions 2, 3, and 4 under new
recommendations 6, 7, 8, and 14 later in this report.
Definition of Building and Structure--(Draft Recommendation Number 5)
In this recommendation, the Department recommended that the
Exceptions to Section 1105.4 use the term ``structure'' instead of
``building.'' This was recommended both for consistency with the
charging paragraph, and in order to ensure that the intent of the code,
that, for purposes of accessibility, SBC treats dwelling units in
buildings separated by firewalls as a single structure. Based on the
comments received on this recommendation, the Department has withdrawn
its recommendation.
Ground Floor--(Draft Recommendation Number 6)
The Fair Housing Act regulations define ``ground floor'' as a
``floor of a building with a building entrance on an accessible route.
A building may have one or more ground floors.'' 24 CFR 100.202. The
Guidelines further state: ``Where the first floor containing dwelling
units in a building is above grade, all units on that floor must be
served by a building entrance on an accessible route. This floor will
be considered to be a ground floor.'' 56 FR at 9500.
If a building is built into a hill, for example, and the front and
the back of the building have entrances to dwelling units at grade, but
at different elevations, the ground floor dwelling units on both levels
are covered under the Guidelines. See the Questions and Answers About
the Guidelines, question number 6. 59 FR at 33364.
Exception 1, Section 1105.4.2, states that the requirements for
Type B dwelling units shall not apply to dwelling units that are both
located above the first level containing dwelling units and that are
not provided with elevator access thereto. This implies that if a
building is built into a hill, for example, and the front and the back
of the building have entrances at grade but at different elevations,
the first level containing dwelling units could be considered the level
at the lowest elevation. Since a ground floor is a floor of a building
with a building entrance on an accessible route and there can be more
than one ground floor, it is clear in the example above that both
levels of that building built into the hill are considered ``ground
floors'' and must comply with the Guidelines.
The SBC defines the term ``ground floor dwelling unit'' in Chapter
2 as a dwelling unit with a primary entrance and habitable space at
grade. However, the SBC does not refer to the term in its provisions
for accessible dwelling units (Section 1105.4.2). The definition of
``ground floor dwelling unit'' does not indicate that there can be more
than one ground or grade levels and therefore more than one level of
ground floor dwelling units. According to the SBC, in the example given
above, the level at the lowest elevation is the only level required to
have accessible dwelling units. Therefore, the SBC definition of
``ground floor dwelling unit'' does not meet the requirements of the
Act, regulations, and the Guidelines.
In its draft report for public comment, the Department offered a
recommendation that the SBC define ground floor to match the
regulations and the Guidelines, and delete the definition of ``dwelling
unit, ground floor'' from Section 1102. As the Department stated in the
preamble to this report, it is mindful of the fact that the language in
the regulations and the Guidelines is not couched in building code
terminology. The Department is, therefore, withdrawing this
recommendation. However, the Department maintains that the SBC is
inconsistent with the Act, the regulations and the Guidelines with
respect to requiring additional ground floors to be accessible. In
addition, during review of the public comments, two additional concerns
arose: (1) Whether or not the SBC's scoping language, in combination
with the definition of ``dwelling unit, ground floor,'' makes it clear
that there must be at least one ground floor, and (2) whether the
language at Exception 1 of 1105.4.2 results in requiring builders to
make the lowest floor containing dwelling units of a building
accessible even if it were more practical to make a different floor
(such as the second floor) containing dwelling units accessible when
that floor is closer to the grade, even if not ``at grade.'' The
Department will, however, work with the model code organizations, and
any other interested persons, to develop alternative language that will
address this issue to the Department's satisfaction.
In the meantime, the Department believes that owners, builders,
developers, designers, architects and others involved in the design and
construction of housing covered by the Act must apply the Department's
definition of ``ground floor'' when making determinations whether
dwelling units or sleeping units in a non-elevator building with four
or more such units are required to comply with the Act.
Buildings Connected by Breezeways or Stairways--(Draft Recommendation
Number 7)
The regulations define a building as ``a structure, facility or
portion thereof that contains or serves one or more dwelling units.''
24 CFR 100.201. Based on that definition, a structure with three
dwelling units that is structurally connected to another structure with
three units, by a stairway or breezeway, for example, is considered one
covered multifamily dwelling with six dwelling units.
According to the SBC, buildings that are structurally connected by
a breezeway or stairway are considered two separate buildings. However,
there are instances when two buildings connected by a stairway that
provides the only means of egress to dwelling units are considered one
building. However, this must be determined on a case-by-case. As a
result, the SBC may not meet the requirements of the Guidelines in
terms of covered units connected by breezeways or stairways.
Recommendation Number 4 (Draft Recommendation Number 7)
It is recommended that the SBC be modified to include an additional
provision under Section 3104, Covered and Enclosed Walkways and
Tunnels, as follows:
3104.2.1. Separate structures. For purposes of calculating the
number of Type B dwelling and sleeping units required by Chapter 11,
structurally connected buildings and buildings with multiple wings
shall be considered one structure.
[[Page 15780]]
Multistory Dwelling Units--(Draft Recommendation Number 8)
The regulations determined that a multistory dwelling unit that
does not have an elevator internal to the unit that is located in a
building that does not have an elevator is not a ``covered multifamily
dwelling'' because the entire unit is not on the ground floor. 54 FR at
3244. The Guidelines define a ``multistory dwelling unit'' as a
dwelling unit with finished living space located on one floor and the
floor or floors immediately above or below it. 56 FR at 9500. A
``single-story dwelling unit'' is defined as a dwelling unit with all
finished living space located on one floor. 56 FR at 9501.
The SBC defines ``multistory dwelling units'' as a dwelling unit
with habitable or bathroom space located on more than one story. The
SBC defines ``habitable space (room)'' as a space in structure for
living, sleeping, eating or cooking. Bathrooms, toilet compartments,
closets, halls, storage or utility space, and similar areas, are not
considered habitable space.
According to the SBC's definition of ``multistory dwelling unit'',
a unit would be considered multistory if one level contains living or
``habitable'' space and the floor next above or below contained only a
bathroom. According to the definitions in the Guidelines, a two-level
unit with only a bathroom, or only a bathroom and storage space on one
level, is not a multistory dwelling unit because finished living space
must be located on both floors. Bathroom space alone does not
constitute living space, nor does bathroom and storage space. The SBC's
definition of ``dwelling unit, multistory'' does not meet the
Department's interpretation of the Act, the regulations and the
Guidelines of what constitutes a ``multistory dwelling unit.''
Recommendation Number 5 (Draft Recommendation Number 8)
It is recommended that the reference to ``or bathroom space'' in
the SBC's definition of ``multistory dwelling unit'' be deleted as
follows:
Section 1102, Definitions:
Dwelling unit, multistory: For application of the accessibility
requirements, this term shall mean a dwelling unit with habitable
space located on more than one story.
V. Seven Specific Design and Construction Requirements
The Guidelines specify seven requirements relating to accessibility
which reflect the language of the Act and the regulations. Compliance
with the provisions of the Guidelines constitutes a safe harbor for
compliance with the requirements of the Act. The Act itself references
the ANSI A117.1 standard as a means for meeting the technical
requirements of the Act. As discussed in the Department's policy
statement, at the time the Act was passed and the Guidelines were
written, ANSI A117.1-1986 was in effect. Since that time, there have
been two additional editions of ANSI A117.1 published, the CABO/ANSI
A117.1 in 1992 and the ICC/ANSI A117.1 in 1998.
The Department believes that compliance with either of these newer
versions of the ANSI-A117.1 constitutes an additional safe harbor in
terms of demonstrating compliance with the technical provisions of the
Act's accessibility requirements. It is, of course, still necessary to
refer to the Act and the regulations, or the Guidelines, for
implementing the scoping requirements. The Department believes that
Code officials may rely on the edition of ANSI A117.1 that has been
adopted by the code organization or State or local jurisdiction, if it
has been adopted without modifications and is uniformly enforced.
The SBC utilizes the technical criteria contained in CABO/ANSI
A117.1-1992. Therefore, the Department has determined that there is no
variance between the requirements of the Act and the model code
provision if the model code provision is based on CABO/ANSI A117.1-
1992, even where those criteria differ from the ANSI A117.1-1986
criteria or the Guidelines.
Requirement 1: Accessible Building Entrance on an Accessible Route
The Guidelines set forth specifications to implement the
requirements of 24 CFR 100.205(a) that all covered multifamily
dwellings shall be designed and constructed to have at least one
building entrance on an accessible route, unless it is impractical to
do so because of terrain or unusual characteristics of the site. 56 FR
at 9503.
Requirement 1 of the Guidelines includes specifications for
providing an accessible entrance on an accessible route, and explains
that the requirements apply to a single building on a site and to
multiple buildings on a site. 56 FR at 9503. In addition, Requirement 1
includes specifications for determining site impracticality based on
terrain and unusual site characteristics. 56 FR at 9503. However, the
Guidelines specify that covered multifamily dwellings with elevators
shall be designed and constructed to provide at least one accessible
entrance on an accessible route, regardless of terrain or unusual
characteristics of the site. 56 FR at 9504.
The SBC's provision related to Requirement 1 are consistent with
the Act, the regulations, and the Guidelines, except as follows:
Site Impracticality Due to Terrain
The Guidelines set forth two tests to assess site impracticality
due to terrain--the individual building test and the site analysis
test. 56 FR at 9503.
Individual Building Test--This test may be used for all sites, but
must be used for sites with a single building having a common entrance
for all units. 56 FR at 9503.
Site Analysis Test--May be used for all sites, including those with
multiple buildings and single buildings with multiple entrances serving
individual dwelling units or clusters of dwelling units except sites
with a single building having a common entrance for all units. This
test has three steps. 56 FR at 9503-04.
Step A requires the calculation of the percentage of total
buildable area of the undisturbed site with a natural slope of less
than 10%. A professional licensed engineer, landscape architect,
architect or surveyor must certify the analysis of the slope. 56 FR at
9504.
Step B states that the percentage of ground floor units that must
be made accessible should be equal to the total buildable area of the
undisturbed site (not including floodplains, wetlands, or other
restricted areas) that has an existing natural grade of less than 10%
slope (previously determined in Step A). 56 FR at 9504.
Step C requires that in addition, all ground floor units in a
building, or ground floor units served by a particular entrance, shall
be made accessible if the entrance to the units is on an accessible
route, defined as a walkway with a slope between the planned entrance
and a pedestrian or vehicular arrival point that is no greater than
8.33%. In some cases, application of Step C will result in a greater
number of accessible units being required. 56 FR at 9504.
For example, according to the Guidelines' site analysis test for
determining impracticality due to terrain, if 60% of the total area of
an undisturbed site has an existing natural grade of less than 10%
slope, then 60% of the ground floor units are required to be served by
an accessible entrance on an accessible route. If we construct two
buildings not served by elevators on that site, each with 20 ground
floor units for a total of 40 ground floor dwelling units on the entire
site, then 24 ground floor dwelling units (60% of ground floor units)
must have an accessible entrance
[[Page 15781]]
on an accessible route. In addition, according to step C of the site
analysis test, all ground floor units in the building, or ground floor
units served by a particular entrance shall be made accessible if the
entrance to the units is on an accessible route.
Variances Related to Site Analysis Test--(Draft Recommendation Number
9)
Section 1105.4.2, Exception 3, of the SBC provides that the number
of Type B dwelling units in multiple non-elevator buildings on a single
site is allowed to be reduced to a percentage of the ground floor units
which is equal to the percentage of the entire site having grades,
prior to development, which are 10% or less; but in no case shall the
number of Type B units be less than 20% of the ground floor dwelling
units on the entire site.
This Exception corresponds to Steps A and B of the site analysis
test, except that the Guidelines requires the grades to be ``less than
10%''. 56 FR at 9504. In addition, the Exception fails to provide
equivalent language to Step C, i.e., it does not require that, in
addition to the percentage of ground floor units required to be
accessible, all ground floor units in buildings, or ground floor units
served by a particular entrance, must be made accessible if the
entrance to the units is on an accessible route. 56 FR at 9504.
Therefore, the SBC does not meet this aspect of the Guidelines.
In addition, according to the Guidelines, regardless of site
considerations, an accessible entrance served by an accessible route is
practical whenever an elevator connects parking with a ground floor, in
which case all ground floor units are covered, or whenever an elevated
walk with a slope no greater than 10% is planned between an entrance
and a pedestrian or vehicular arrival point. 56 FR at 9504. The SBC
does not include any language that reflects these requirements. As a
result, the SBC does not meet these provisions of the Guidelines.
Recommendation Number 6 (Draft Recommendation Number 9)
In order to address these inconsistencies, we therefore recommend
the following changes and additions to Section 1105.4.2, Exception 3,
of the SBC:
The number of Type B dwelling and sleeping units provided in
multiple non-elevator buildings on a single site is allowed to be
reduced to a percentage of the ground floor dwelling and sleeping
units which is equal to the percentage of the entire site having
grades, prior to development, which are less than 10%; but in no
case shall the number of Type B dwelling and sleeping units be less
than 20 percent of the ground floor dwelling and sleeping units on
the entire site. In addition to the percentage established, all
ground floor dwelling and sleeping units in a building, or ground
floor dwelling and sleeping units served by a particular entrance
shall be Type B if any one of the following applies:
3.1 The slope between the entrance to the dwelling and sleeping
units and a pedestrian or vehicular arrival point is no greater than
8.33%; or
3.2 An elevator provides access to the ground floor only; or
3.3 An elevated walkway with a slope not exceeding 10 percent
is planned between an entrance and a pedestrian or vehicular arrival
point. The slope of the walkway, in such cases shall be reduced to
no greater than 8.33%.
Variances Related to Buildings With Elevators--(Draft Recommendation
Number 10)
According to the Guidelines, buildings with elevators must provide
an accessible entrance on an accessible route regardless of site
impracticality. 56 FR at 9503.
The SBC does not reflect this requirement in Section 1105.4.2,
Exception 4.
Recommendation Number 7 (Draft Recommendation Number 10)
It is recommended that Exception 4, Section 1105.4.2 be modified to
exempt buildings with elevators from site impracticality as follows:
The required number of Type A and Type B dwelling units and Type B
sleeping units shall not apply to a site where the lowest floor or the
lowest structural member of a structure not provided with elevator
service is required to be at or above the base floor elevation
resulting in * * *.
Variance Related to Sites With Unusual Characteristics--(Draft
Recommendation Number 11)
In addition, the criteria in the Guidelines for determining site
impracticality for sites having unusual characteristics specifies that
an accessible entrance on an accessible route is impractical when the
unusual site characteristics result in a difference in finished grade
elevation exceeding 30 inches AND 10 percent, measured between an
entrance and all vehicular or pedestrian arrival points within 50 feet
of the planned entrance, and if none, then between the closest
vehicular or pedestrian arrival point. 56 FR 9504.
The SBC does not reflect this requirement in Section 1105.4.2,
Exception 4. The SBC's corresponding provision states that the
accessibility requirements shall not apply to a site where the lowest
floor or the lowest structural building member is required to be at or
above the base flood elevation resulting in a difference in elevation
between the minimum required floor elevation at the primary entrances
and vehicular and pedestrian arrival points within 50 feet exceeding 30
inches, OR a slope exceeding 10 percent between the minimum required
floor elevation at the primary entrances and vehicular and pedestrian
arrival points within 50 feet. The Guidelines specify that the
difference in finished grade elevation must be both 30 inches and 10
percent.
Recommendation Number 8 (Draft Recommendation Number 11)
It is further recommended that Section 1105.4.2, Exception 4, be
modified to read:
1. A difference in elevation between the minimum required floor
elevation at the primary entrances and vehicular and pedestrian arrival
points within 50 feet (15 240 mm) exceeding 30 inches (762 mm), AND * *
*.
Requirement 2: Accessible and Usable Public and Common Use Areas
The Act and the regulations provide that covered multifamily
dwellings with a building entrance on an accessible route be designed
and constructed in a manner so that the public and common use areas are
readily accessible to and usable by people with disabilities. 42 U.S.C.
3604 (f)(3)(c)(i); 24 CFR 100.205(c)(1). The Guidelines' Requirement 2
cites the appropriate section of the ANSI A117.1-1986 Standard for the
technical provisions for 15 accessible elements or spaces, and
describes the application of the specifications including modifications
to the referenced Standard. 56 FR at 9505. Following are the 15 basic
elements or spaces for accessible and usable public and common use
areas or facilities:
Accessible routes
Protruding objects
Ground and floor surface treatments
Parking and passenger loading zones
Curb ramps
Ramps
Stairs
Elevators
Platform lifts
Drinking fountains and water coolers
Toilet rooms and bathing facilities
Seating, tables, or work surfaces
Places of assembly
Common-use spaces and facilities
Laundry rooms
5656 FR at 9505
When a variance is identified in the SBC that does not meet or
exceed the
[[Page 15782]]
requirements of the Guidelines for each of the 15 elements or spaces
above, they are noted below.
Accessible Route(s)
Vehicular Route--(Draft Recommendation Number 12)
Requirement 1, paragraph (5) of the Guidelines states that if the
slope of the finished grade between covered multifamily dwellings and a
public or common use facility exceeds 8.33%, or where other physical
barriers or legal restrictions, all of which are outside the control of
the owner, prevent the installation of an accessible pedestrian route,
an acceptable alternative is to provide access via a vehicular route,
so long as necessary site provisions such as parking spaces and curb
ramps are provided at the public or common use facility. 56 FR at 9504.
The Exception in SBC Section 1105.4.4 contains language which is
comparable to the Guidelines with two omissions. That section states:
If the slope of the finished grade between accessible facilities
and buildings exceeds 1:12, or where physical barriers prevent the
installation of an accessible route, a vehicular route with parking at
each accessible facility or building is permitted in place of the
accessible route.
The SBC does not include language making it clear that accessible
parking and curb ramps must be available at the accessible facility if
access if provided by a vehicular route.
Recommendation Number 9 (Draft Recommendation Number 12)
It is recommended that SBC, Section 1105.4.4, Exception, be
modified to include the following language:
If the slope of the finished ground level between accessible
facilities and buildings exceeds one unit vertical in 12 units
horizontal, or where physical barriers prevent the installation of
an accessible route, a vehicular route with accessible parking , in
accordance with 1104, at each public or common use facility or
building is permitted in place of the accessible route.
Headroom--(Draft Recommendation Number 13)
Based on the public comments received, the Department has
determined that the SBC adequately addresses this issue.
Stairs--(Draft Recommendation Number 14)
The Guidelines require that accessibility be provided on stairs
located along accessible routes connecting levels not connected by an
elevator. 56 FR at 9505. For example, a ground floor entry might have
steps up to a bank of mailboxes, with a ramp located beside the steps.
The stairs in this case are required to meet the ANSI A117.1
specification, since they will be used by people with disabilities for
whom stairs are more usable than ramps. However, stairs are not a
component of an accessible route.
Since stairs are not parts of accessible routes and they are not
specifically referenced in Chapter 11, Accessibility, of the SBC, one
must refer to Chapter 10, Means of Egress, for stair provisions.
However, the Chapter 10 requirements do not necessarily apply to stairs
that connect levels not connected by an elevator if they are not a part
of a means of egress. There are variances between the SBC and the
Guidelines' requirements for stairs along accessible routes regarding
handrail extensions and projections, for example.
Recommendation Number 10 (Draft Recommendation Number 14)
It is recommended that the SBC include a provision for stairways
under Section 1106, other Features and Facilities as follows:
Stairways.
Stairways located along accessible routes connecting floor
levels that are not connected by an elevator shall be designed and
constructed to comply with CABO/ANSI A117.1-1992.
Elevators--(Draft Recommendation Number 15)
The Guidelines require that elevators on accessible routes be
accessible according to the technical specifications of ANSI A117.1-
1986, Section 4.10, Elevators. 56 FR at 9505. This applies to elevators
located within multistory dwellings. SBC section 1106.3, Elevators,
Lifts, states that all passenger elevators on an accessible route shall
be accessible. However, the SBC provides an exception to Section 1106.3
which states that elevators within a dwelling unit are not required to
be accessible. This does not meet the requirements of the Guidelines
because elevators within multistory units must provide accessibility.
Recommendation Number 11: (Draft Recommendation Number 15)
It is recommended that this exception be deleted.
Parking and Passenger LoadinG Zones--(Draft Recommendation Numbers 16
and 17)
The Questions and Answers About the Guidelines (Question and Answer
14c) state that where there are several individual parking garages
grouped together either in a separate area of the building (such as at
one end of the building, or in a detached building), for assignment or
rental to residents, at least 2% of the garages must be at least 14'2"
wide and have a vehicular door at least 10' wide. 59 FR at 33366. This
requirement assumes that garage parking is the only type of parking
provided at the site.
Question and Answer 14c provides the minimum requirement for the
width of accessible garages and garage doors. The minimum widths
provide enough space for an automobile to enter the garage, and for a
passenger or driver using a wheelchair to exit through the garage door
without interference by the automobile. However, the minimum
requirements do not preclude a garage design that provides equivalent
or greater accessibility. For example, a designer may choose to design
a garage with a door that is 8 feet wide, but provides a separate
accessible exit door through which the driver or the passenger may
exit, provided that it connects to the accessible route to the entrance
of the unit.
The SBC does not provide minimum requirements for these garages,
and therefore, does not meet this provision of the Guidelines.
The Guidelines provide that if provided at the site, there be
accessible visitor parking sufficient to provide access to grade-level
entrances of covered multifamily dwellings, and accessible parking at
facilities. The Guidelines also require accessible parking on the same
terms and with the full range of choices (e.g., surface parking or
garage) that are provided to other residents of the project. 56 FR at
9505.
In addition, the Questions and Answers About the Guidelines provide
further clarification of the parking requirements at Q&A 14(b) which
clarified that when more than one type of parking is provided, at least
one space for each type of parking should be made accessible even if
this number exceeds two percent.
The Department does not recommend that the SBC revise any of its
broader scoping requirements for parking. However, the SBC does not
include comparable language in Section 1104, Parking Facilities, with
respect to the above variances. Therefore, the SBC does not meet the
provisions of the Guidelines with respect to these issues.
Recommendation Number 12 (Draft Recommendation Number 16):
In order to address these inconsistencies, it is recommended that
[[Page 15783]]
the SBC add the following language to Section 1104.1:
Two percent of parking spaces provided for R2 and R3 occupancies
required to have accessible/adaptable dwelling or sleeping units
shall be accessible * * *
At least 2% of parking garages provided for R2 and R3
occupancies required to have accessible dwelling or sleeping units
where there are several individual garages grouped together, either
in a separate area of a structure or in a detached structure, for
assignment or rental to residents, must be at least 14'2" wide and
have a vehicular door at least 10' wide * * *
Where accessible parking spaces are provided, at least one of
each type (surface parking, carports, or garage) shall be provided.
* * * Where visitor parking is provided, at least one accessible
visitor parking space shall be provided.
* * * Where parking is provided at public and common use
facilities that serve accessible buildings, at least one accessible
parking space shall be provided.
In order to ensure that passenger loading zones comply with the
requirements of the Guidelines, it is recommended that SBC add a
provision under Section 1104 which states the following:
When provided, passenger loading zones shall be located on an
accessible route. Passenger loading zones shall be designed and
constructed in accordance with CABO/ANSI A117.1-1992.
Table 1104.3, Accessible Parking Spaces includes a note that states
``the accessible space shall be provided but need not be designated as
reserved for the physically disabled.'' In addition, Section 1107,
Signs, indicates that elements shall be identified by the International
Symbol of Accessibility at four locations, the first of which states
that it is required at accessible parking spaces required by 1104.1
(Parking Facilities) but not where the total parking spaces provided
are five or less. This does not meet the requirements of the Guidelines
that requires signage at all accessible parking space.
Recommendation Number 13 (Draft Recommendation Number 17)
It is recommended that this language from provision 1 under Section
1107.1, Signs, be deleted.
Recreational Facilities
The Guidelines, in Requirement 2, state that: ``If provided in the
facility or at the site; (a) where multiple recreational facilities
(e.g., tennis courts) are provided sufficient accessible facilities of
each type to assure equitable opportunity for use by persons with
handicaps'' shall be provided. These facilities must be connected by an
accessible route to the covered dwelling units or a vehicular route if
an accessible route is not possible. The SBC Section 1105.4.5 requires
25%, but not less than one, of recreational facilities of each type in
each occupancy group to be accessible.
The Department concludes that the Guidelines may be interpreted to
be stricter than the requirements of the model codes with respect to
the requirement for accessible recreational facilities because an
interpretation of ``sufficient to provide equitable opportunity for
use'' may result in determinations that recreational facilities that
serve different buildings containing accessible dwelling units must be
accessible, even if this means making all of the same type of
recreational facility accessible (such as two swimming pools on a large
site, each which serves different buildings on the site).
For example, one out of four recreational facilities of the same
type serving a specific residential use group is code compliant (25%
but not less than one), but may not be considered ``sufficient'' by the
Department if the facilities of the same type are widely spread across
a large site serving one building, or spread across a site on which
there are multiple buildings.
However, because this matter was not included in the draft reports,
and there has not been an opportunity for public participation in a
resolution of this matter, the Department is not including a
recommendation to resolve this matter. The Department will work with
all interested parties to address this matter.
Requirement 3: Usable Doors
The Act and regulations require that all doors designed to allow
passage into and within a covered dwelling unit be sufficiently wide to
allow passage by persons in wheelchairs. 42 U.S.C. 3604 (f)(3)(C)(ii);
24 CFR 100.205(c)(2). The Guidelines set forth criteria to meet this
requirement. The Guidelines also set forth additional guidance
regarding doors that are a part of an accessible route in the public
and common use areas of multifamily dwellings and to doors into and
within individual dwelling units. 56 FR at 9506.
The Guidelines provide the following:
On accessible routes in public and common use areas, and for
primary entry doors to covered units, doors that comply with ANSI
A117.1 4.13 will meet the Act's requirements for usable doors; and
Within individual dwelling units, doors intended for user passage
through the unit which have a clear opening of at least 32 inches
nominal width when the door is open 90 degrees, measured between the
face of the door and the stop, would meet the Act's requirement.
56 FR at 9506.
The Department has determined that the SBC meets the requirements
of the Act, the regulations, and the Guidelines with respect to usable
doors.
Requirement 4: Accessible Route Into and Through the Covered
Dwelling Unit
The Act and regulations require that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed and constructed in such a manner that all premises within
covered multifamily dwelling units contain an accessible route into and
through the covered dwelling unit. 42 U.S.C. 3604(f)(3)(C)(iii)(I), 24
CFR 100.205 (c)(3)(i). Requirement 4 of the Guidelines sets forth
criteria to meet this requirement 56 FR at 9509-10. The SBC meets the
provisions of the Act, regulations, and Guidelines with respect to
Requirement 4, except the following.
Multistory Units Served by Elevators--(Draft Recommendation Number 18)
Among the criteria for Requirement 4 is the provision that in
multistory dwelling units in buildings with elevators, the story of the
unit that is served by the building elevator is the primary entry to
the unit. 56 FR at 9507.
The SBC provides the following exceptions to the requirement for
Type B units as follows (Section 1105.4.2):
A multistory dwelling unit which is not provided with elevator
service is not required to comply with requirements for Type B
dwelling units. Where a multistory dwelling unit is provided with
elevator service to only one floor, the floor provided with the
elevator service shall comply with the requirements for a Type B
dwelling unit and a toilet facility shall be provided.
The SBC does not mention that where a multistory dwelling unit
is provided with elevator service, the story served by the elevator
must be the primary entry to the unit. As a result, the SBC does not
meet the requirements of the Guidelines in terms of the exceptions
for multistory units in buildings served by elevators.
Recommendation Number 14 (Draft Recommendation Number 18)
It is recommended that the SBC modify Section 1105.4.2, Exception 2
as follows:
A multistory dwelling unit which is not provided with elevator
service is not required to comply with the requirements for Type B
dwelling units. Where a multistory dwelling unit is provided with
elevator service to only one floor, the floor provided with elevator
service shall be the primary entry to the unit, shall comply with
the requirements for a
[[Page 15784]]
Type B dwelling unit, and a toilet facility shall be provided.
Requirement 5: Light Switches, Electrical Outlets, Thermostats and
Other Environmental Controls in Accessible Locations
The Act and regulations require that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed and constructed so that all premises within the covered units
contain light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations. 42 U.S.C.
3604(f)(3)(C)(iii)(II); 24 CFR 100.205. Requirement 5 of the Guidelines
sets forth criteria to meet these requirements. The SBC meets the
provisions of the Act, regulations, and Guidelines with respect to
Requirement 5.
Requirement 6: Reinforced Walls for Grab Bars--(Draft
Recommendation Number 19)
Requirement 6 of the Guidelines sets forth technical specifications
to meet the requirements of the Act at 42 U.S.C. Sec. 3604
(f)(3)(C)(iii)(III) and the regulations at 24 CFR 100.205(c)(3)(iii),
which specifies that all covered multifamily dwellings with a building
entrance on an accessible route shall be designed and constructed so
that all premises within the covered units contain reinforcements in
bathroom walls to allow later installation of grab bars around toilet,
tub, shower stall and shower seat, where such facilities are provided.
56 FR at 9509-10.
The SBC Section 1110.9.3, Grab bar and seat reinforcement, states
that where walls are located so as to permit installation of grab bars
and seats complying with Section 4.17.4, 4.21.4, 4.22.4, 4.23.3, of
CABO/ANSI A117.1-1992, reinforcement shall be provided for the
installation of grab bars and seats meeting those requirements. The SBC
does not include any provisions for the installation of grab bars for
fixtures, sunken or raised tubs for example, that are located away from
walls, which does not meet the requirements of the Guidelines.
Recommendation Number 15 (Draft Recommendation Number 19)
It is recommended that the SBC modify Section 1110.9.4, Toilet and
bathing fixtures, as follows:
Section 1110.9.4 Toilet and bathing fixtures:
Toilet and bathing fixtures shall comply with either Section
1110.9.4.1 Option A or 1110.9.4.2 Option B. Where fixtures are
located away from walls alternative reinforcement complying with
CABO/ANSI A117.1 4.24.2.5 and 4.24.3 shall be provided for the
mounting of grab bars.
Requirement 7: Usable Kitchens and Bathrooms
Usable Kitchens--(Draft Recommendation Number 20)
The Act and regulations provide that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed to have usable kitchens and bathrooms such that an individual
in a wheelchair can maneuver about the space. 42 U.S.C. 3604
(f)(3)(C)(iii)(IV); 24 CFR 100.205. Requirement 7 of the Guidelines
sets forth technical criteria to meet those requirements. 56 FR at
9511-15.
The Guidelines address a parallel approach to kitchen sinks in
Requirement 7. The parallel approach to the sink is addressed in Figure
7(c). 56 FR at 9511. The ANSI A117.1-1986 standard requires, with
respect to sinks and lavatories, a forward approach with clear floor
space below, and illustrates the forward approach centered on the sink/
lavatory. (ANSI A117.1-1986, Fig. 32 on page 50.) The Department's
Guidelines allowed a departure from the ANSI standard. The Guidelines
permit the clear floor space to be designed for a parallel position. 56
FR at 9511-12. While the Guidelines only show the clear floor space
centered on the lavatory [Fig. 7 (c)], it is equally applicable to the
sink.
SBC, Section 1110.8.2.2, states that the clear floor space at the
sink shall be positioned for a parallel approach. The offset of the
centerline of the clear floor space and sink is required to be 9 inches
which does not meet the requirements of the Guidelines. The Guidelines
require the centering of the parallel approach on the sink.
Recommendation Number 16 (Draft Recommendation Number 20)
It is recommended that the SBC delete the 9-inch offset requirement
and modify, Section 1110.8.2.2, Clear floor space, as follows:
Section 1110.8.2.2 Clear floor space:
The clear floor space at the sink positioned for a parallel
approach shall be centered on the sink.
Usable Bathrooms--(Draft Recommendation Numbers 21 and 22):
The Guidelines provide two options for designing accessible
bathrooms. 56 FR at 9511. The first option requires a minimal level of
accessibility. This option requires that walls be reinforced for grab
bars and sufficient maneuvering space be provided within the bathroom
for a person using a wheelchair or other mobility aid to enter, close
the door, use the fixtures, reopen the doors and exit. 56 FR at 9511.
The second option for designing accessible bathrooms provides a greater
level of accessibility than that provided by the first option.
The second option for designing accessible bathrooms requires that
they have reinforced walls for grab bars, clear space at specific
locations within the bathroom to permit use of the fixtures, and
specific clearances for fixtures. 56 FR at 9511.
According to the Guidelines, for covered multifamily dwelling units
in elevator buildings, only bathrooms on the accessible level are
subject to the requirements. If a powder room is the only facility
provided on the accessible level of a multistory dwelling unit; it must
comply with the first or second option for designing accessible
bathrooms and have reinforcement for grab bars.
As discussed in reference to kitchens above, the Guidelines require
the centering of the parallel approach on the lavatory. 56 FR at 9512.
The SBC clear floor space requirements for lavatories under Option A,
Section 1110.9.4.1.1, does not require centering of the clear floor
space on the lavatory which does not meet the requirements of the
Guidelines.
Recommendation Number 17 (Draft Recommendation Number 21)
It is recommended that Section 1110.9.4.1.1 be modified as follows:
Section 1110.9.4.1.1 Lavatory:
A 30 inch by 48 inch minimum clear floor space positioned for a
parallel approach shall be provided and centered on the lavatory.
Section 1110.9.4.2.1, Lavatory, under Option B provisions requires
a 9-inch maximum offset of the centerline of the clear floor space and
lavatory that does not meet the requirements of the Guidelines.
Recommendation No. 18 (Draft Recommendation Number 22)
It is recommended that Section 1119.9.4.2.1, Lavatory, be modified
as follows:
Section 1110.4.2.1 Lavatory:
A 30 inch by 48 inch minimum clear floor space positioned for
parallel approach shall be centered on the lavatory.
Chapter 6: BOCA National Building Code Analysis
I. Purpose
The purpose of this report is to identify provisions of the 1996
edition of the National Building Code (herein referred to as BNBC),
published by the Building Officials & Code Administrators International
(BOCA)
[[Page 15785]]
that do not meet the requirements of the Fair Housing Act (the Act),
the regulations implementing the 1988 Amendments to the Act (the
regulations), or the Fair Housing Accessibility Guidelines (the
Guidelines). Where variances are identified, the Department recommends
how they may be revised to meet the requirements of the Act, the
regulations, or the Guidelines. The 1999 edition of the BNBC was
published in January, 1999. A review of the 1999 edition of BNBC is not
part of the scope of the following analysis.
II. Methodology
The analysis of the BNBC by the Department and its contractor,
Steven Winter Associates, Inc., consisted of the following:
--A review of the language of the Act, 42 U.S.C. Sec. 3604 (f)(3)(C),
the regulations at 24 CFR 100.201 and 205, the Fair Housing
Accessibility Guidelines, 56 FR at 9472-9515, and the June 28, 1994
Supplement to Notice of Fair Housing Accessibility Guidelines:
Questions and Answers About the Guidelines,'' 59 FR at 33362-33368 (the
Questions and Answers About the Guidelines).
--A review of the December 15, 1997 copyrighted comparative matrix
developed by the International Code Council (ICC), BOCA, International
Conference of Building Officials (ICBO), Southern Building Code
Congress International (SBCCI), and the Council of American Building
Officials (CABO). The matrix, which was included with HUD's Request for
Quotations for this analysis consists of a side-by-side comparison of
the Guidelines with the corresponding accessibility provisions of the
model building codes. The analysis of BNBC began by a review of the
column of the matrix that includes BNBC's accessibility requirements
and comparing them with the column that includes the provisions of the
Guidelines. The matrix review was conducted to identify apparent
variances between BNBC's accessibility requirements and those of the
Act, regulations, and Guidelines.
--A review of the accessibility provisions of the 1996 edition of BNBC;
and a review of applicable referenced codes and standards, including:
American National Standards Institute (ANSI) A117.1-1986, which is
referenced in the regulations, and CABO/ANSI A117.1-1992, and the
International Plumbing Code--1995, which are referenced by BNBC.
Because the matrix did not include full text of the technical
provisions, it was necessary to use these standards as companion
documents in assessing the matrix, the Guidelines, and BNBC. They were
reviewed to identify any variances from the Act, regulations, or
Guidelines in the technical provisions required by each.
--Interviews with Kim Paarlberg, BOCA Staff Architect and the liaison
to the IBC Means of Egress/Accessibility Committee, to gain insight
into how the BOCA responds to variances identified by SWA. SWA found it
necessary to understand BOCA's interpretations of its own requirements
that may not be apparent when reviewing code text.
The original analysis of the BNBC was submitted to the Department
by SWA on August 5, 1999. The Department formed a Model Code Working
Group consisting of representatives from the Office of Fair Housing and
Equal Opportunity, the Office of General Counsel; and the Office of
Housing. A representative of the U.S. Department of Justice also
participated in the Working Group. The Working Group met with SWA on
September 8, 1999, and asked questions and made comments and
suggestions about the analysis. This meeting led to further
conversations between SWA and Kim Paarlberg, and conversations between
HUD staff and BOCA staff.
The draft report was published for public comment on October 26,
1999, and a public meeting on the draft reports was held on November
10, 1999. Written comments on the report were received. All comments
were reviewed and considered. This final report incorporates many of
those comments and has been revised from the draft report.
III. The BOCA National Building Code
The Building Officials & Code Administrators International (BOCA),
Inc., is a nonprofit organization that administers the BNBC series of
model regulatory construction codes. The code provides minimum
standards for public safety, health and welfare as they are affected by
building construction. Compliance with the BOCA model building code is
not required unless adopted by reference by a jurisdiction's board,
council, or other authoritative governing body.
The 1996 BNBC, Thirteenth Edition, published January 1, 1996,
includes provisions for accessibility intended to reflect the intent of
the Act. Previous editions of the code include provisions for
accessibility, but not as required by the Act. The 1996 BNBC, Chapter
11, Accessibility, is the first attempt at codifying the accessibility
provisions of the Act. Any jurisdiction that adopts the 1996 BNBC must
follow these accessibility provisions.
Unlike the Fair Housing Act, BNBC is a model building code and not
a law. It provides minimum standards for public safety, health and
welfare as they are affected by building construction. Compliance with
BNBC is not required unless adopted by reference by a jurisdiction's
board, council, or other authoritative governing body. Jurisdictions
may adopt a model building code in its entirety or with modifications;
hence, the building codes are referred to as ``model codes.''
In the past, some model building codes have required that a certain
percentage or number of dwelling units in defined residential uses meet
the standards for full accessibility as defined by ANSI A117. These
dwelling units are referred to in BNBC, 1107.4.2, and defined in
Section 1102, as a ``Type A dwelling unit.'' Section 1107.4.2 of the
code, adopts standards for a ``Type B dwelling unit.'' A ``Type B
dwelling unit'' is defined in Section 1102 as a dwelling unit that is
designed and constructed to provide a minimal level of accessibility in
accordance with the applicable provisions of Chapter 11 and CABO/ANSI
A117.1 listed in Chapter 35. The purpose of the Type B dwelling unit is
to incorporate the requirements of the design and construction
requirements of the Act, the regulations, and the Guidelines. BOCA
adopts CABO/ANSI A117.1-1992 and refers to the International Plumbing
Code (IPC) for the technical provisions for toileting and bathing
facilities, kitchens, and bathrooms. It is important to note, however,
that neither CABO/ANSI-A117.1-1992 nor the IPC contain scoping
provisions, as discussed below.
It is the Department's understanding that BOCA will no longer
publish subsequent updates to the latest version of the BNBC. The four
model code organizations have joined with the ICC to produce one
international building code under the ICC, the first of which will be
published as the International Building Code 2000 early in the year
2000.
IV. Scoping Provisions
Building codes have two major components that are relevant to this
analysis. One component describes the technical standards that should
be applied during the design and construction or alteration of a
building or structure or elements within a structure. The other
component is a description of the types of buildings or structures or
elements within a structure
[[Page 15786]]
to which the technical standards are applied. The provisions in this
second component are referred to as ``scoping'' provisions. This
section of the analysis sets forth areas where the scoping provisions
of the BNBC do not include all of the dwelling units, buildings, or
uses that are covered by the Act, the regulations, or the Guidelines.
This analysis of the scoping provisions of BNBC included an examination
of the following:
BNBC's definition of dwelling unit, building, structure, and ground
floor dwelling unit;
BNBC's classification of residential buildings according to use and
occupancy; and
BNBC's scoping of dwelling units to which the accessibility
provisions apply.
This analysis concludes that BNBC covers most of the same dwelling
units, buildings and residential uses as the Act, regulations, and
Guidelines. For example, the Department concluded that, in buildings
with four or more dwelling units, apartments, custom-designed
condominiums, multistory units with internal elevators, single story
townhouses, modular units are covered, and additions of four or more
units to existing buildings, are included within BNBC's scoping
requirements for Type B dwelling units. However, the Department has
concluded that the following provisions of BNBC do not or may not
include ``covered multifamily dwellings'' as they are defined in the
Act, regulations, or Guidelines.
BNBC Classification of Residential Use Groups
BNBC stipulates that all structures in which sleeping
accommodations are provided, excluding those that are classified as
institutional occupancies, shall be classified as Use Group R-1, R-2,
R-3, or R-4 and defined as follows (Section 310.0):
--Use Group R-1 structures include hotels, motels, boarding houses and
similar buildings arranged for shelter and sleeping accommodations for
more than five occupants who are primarily transient in nature,
occupying the facilities for a period of less than 30 days.
--Use Group R-2 structures include all multiple-family dwellings having
more than two dwelling units, except as provided for under Use Group R-
3 structures, and shall also include all boarding houses and similar
buildings arranged for shelter and sleeping accommodations in which the
occupants are primarily not transient in nature.
--Use Group R-3 structures include all buildings arranged for occupancy
as one-or two-family dwelling units, including not more than five
lodgers or boarders per family and multiple single-family dwellings
where each unit has an independent means of egress and is separated by
a 2-hour fire separation assembly.
--Use Group R-4 structures include all detached one-and two-family
dwellings not more than three stories in height, and the accessory
structures as indicated in the one-and two-family dwelling code.
The reference to ``detached one-and two-family dwellings'' under
Use Group R-4 refers to structures that are physically detached.
According to BNBC, buildings separated by firewalls are not considered
separate structures (see the discussion about BNBC's definition of
``building'' and ``structure'' below).
Definition of ``Dwelling Unit''--(Draft Recommendation Number 1 and 2)
The regulations define the term ``dwelling unit'' as: ``a single
unit of residence for a family of one or more persons. Examples of
dwelling units include: a single family home; an apartment unit within
an apartment building; and in other types of dwellings in which
sleeping accommodations are provided but toileting or cooking
facilities are shared by occupants of more than one room or portion of
the dwelling, rooms in which people sleep. Examples of the latter
include dormitory rooms and sleeping accommodations in shelters
intended for occupancy as a residence for homeless persons.''
24 CFR.100.201.
It is clear from the discussion in the Preamble to the regulations,
found at 54 FR 3244 (Jan. 23, 1989), that the Department intended that
each sleeping room intended for occupancy by a separate household in a
building with shared toileting or kitchen facilities would be
considered a separate dwelling unit, and that buildings with four or
more of these sleeping accommodations are ``covered multifamily
dwelling units'' for purposes of the Act.
Of course, a detached building that has four or more sleeping rooms
with shared toileting or kitchen facilities and that is intended for
occupancy by one household is not considered to be a ``covered
multifamily dwelling'' under the Act. For example, a detached single
family house with four bedrooms occupied by four or more persons
related by birth or marriage is not a covered multifamily dwelling. In
addition, a single family house occupied by four or more unrelated
persons that functions as one distinct household, such as what is
commonly referred to as a ``group home'' would not be considered to be
a ``covered multifamily dwelling'' for purposes of the application of
the design and construction requirements of the Act. This latter
example is consistent with case precedent and the position of the
Department and the Department of Justice with respect to the
application of zoning and land use restrictions to single family group
homes.
BNBC defines the term ``dwelling unit'' in Section 310.2,
Definitions, as follows:
A single unit providing complete, independent living facilities for
one or more persons, including permanent provisions for living,
sleeping, eating, cooking and sanitation.
In general, BNBC (1107.4.2) applies the accessibility requirements
in a Type B dwelling unit to occupancies in Group R-2 containing four
or more dwelling units and in occupancies in Group R-3 where there are
four or more dwelling units in a single structure. According to BOCA
representatives, there is no circumstance in which BNBC includes a
separate sleeping room as a ``dwelling unit.''
Because sleeping accommodations for separate households in a
structure are not covered under BNBC's definition of ``dwelling unit,''
BNBC's scoping provisions do not meet the requirements of the Act, the
regulations, or the Guidelines because they do not include all of the
dwelling units or residential structures that are covered under the
Act, the regulations and Guidelines.
In its draft report, SWA recommended that the definition of
dwelling unit be modified in the BNBC. Based on public comments
received on the SWA draft report on the BNBC, the Department is
withdrawing this recommendation. Instead, SWA recommends that the BNBC
adopt a new definition of ``sleeping unit'' as stated below, and add
that language as appropriate to the scoping provisions of Chapter 11,
as reflected in subsequent recommendations.
Recommendation Number 1 (Draft Recommendation Number 1 and 2)
It is recommended that BNBC be revised to add a definition to 310.2
as follows:
Sleeping unit: A room in which people sleep intended to be
occupied as a residence.
[[Page 15787]]
BNBC does not require that common use spaces that serve accessible
sleeping units must be accessible.
Recommendation Number 2 (New Recommendation)
It is recommended that BNBC add the following provision to 1107.4:
Rooms and spaces available for the use of the residents of
accessible sleeping units shall be accessible. Accessible spaces
shall include toilet and bathing rooms, kitchen, living and dining
areas and any exterior spaces, including patios, terraces and
balconies.
Transient Housing--(Draft Recommendation Number 3)
In Draft Recommendation 3, SWA proposed that the BNBC be revised to
make clear that certain types of housing that the BNBC viewed as
transient are dwellings subject to the requirements of the Act,
including the design and construction requirements. This housing may
include timeshares, residential hotels and motels, boarding houses,
dormitories, and homeless shelters. The BNBC uses a 30-day measure as
the means to determine whether a building is for transient use and thus
not a dwelling subject to the Act or Chapter 11.
A 30-day measure is inappropriate in determining whether a building
is covered by the Act. The BNBC's 30-day test of transience is
inappropriate because it misleads designers, builders and other readers
of the code that such housing need not meet the requirements of the
Act. Length of stay is only one factor in determining whether a
building is a ``covered multifamily dwelling.'' Other factors to be
considered include: (1) whether the rental rate for the unit will be
calculated based on a daily, weekly, monthly or yearly basis; (2)
whether the terms and length of occupancy will be established through a
lease or other written agreement; (3) what amenities will be included
inside the unit, including kitchen facilities; (4) how the purpose of
the property is marketed to the public; (5) whether the resident
possesses the right to return to the property; and (6) whether the
resident has anywhere else to which to return.
Accordingly, because the above-described types of housing which are
subject to the Act are not required to meet BNBC's Chapter 11
requirements, the BNBC is not consistent with the Act, its regulations
and Guidelines. At this time, the Department is uncertain how best to
resolve this inconsistency between the BNBC and the Department's
regulations. Accordingly, the Department is withdrawing Draft
Recommendation 3. The Department will continue to work with BOCA and
other interested code organizations to develop language that
appropriately conveys to builders and designers that certain
residencies of less than 30 days must meet the Act's accessibility
requirements. In the meantime, the Department believes the factors
listed above must be considered by owners, builders, and architects in
determining whether the requirements of the Act apply to the design and
construction of buildings with rooms for short term occupancy.
Continuing Care Facilities--(Draft Recommendation Number 4)
The Act defines a ``dwelling'' as ``any building, structure, or
portion thereof which is occupied as, or designed or intended for
occupancy as, a residence by one or more families.'' 42 U.S.C. 3602(b).
Such a building may serve more than one purpose. Some buildings, known
as continuing care facilities, residential care facilities, or assisted
living facilities, serve both as a residence for their occupants and as
a place where the occupants receive personal, medical or other support
services.
The Questions and Answers About the Guidelines addressed the issue
of whether the design and construction requirements of the Act apply to
continuing care facilities which incorporate housing, health care and
other types of services. That publication states in part:
The new construction requirements of the Fair Housing Act would
apply to continuing care facilities if the facility includes at least
one building with four or more dwelling units. Whether a facility is a
``dwelling'' under the Act depends on whether the facility is to be
used as a residence for more than a brief period of time. As a result,
the operation of each continuing care facility must be examined on a
case-by-case basis to determine whether it contains dwellings.
59 FR at 33364.
According to BNBC, continuing care facilities may fall under Use
Group I if they have more than five occupants. As a result, they may
not be covered under Section 1107.4.2, Accessible dwelling unit, of the
BNBC.
Section 308.2, Use Group I-1, is defined by BNBC as follows:
This use group shall include buildings and structures which house
six or more individuals who, because of age, mental disability or other
reasons, must live in a supervised environment but who are physically
capable of responding to an emergency situation without personal
assistance. Where accommodating persons of the above description, the
following types of facilities shall be classified as I-1 facilities:
board and care facilities, half-way houses, group homes, social
rehabilitation facilities, alcohol and drug centers and convalescent
facilities. A facility such as the above with five or less occupants
shall be classified as a residential use group.
Section 308.3, Use Group I-2, is defined by BNBC as follows:
This use group shall include buildings and structures used for
medical, surgical, psychiatric, nursing or custodial care on a 24-hour
basis of six or more persons who are not capable of self-preservation.
Where accommodating persons of the above description, the following
types of facilities shall be classified as I-2 facilities: hospitals,
nursing homes (both intermediate care facilities and skilled nursing
facilities), mental hospitals and detoxification facilities. A facility
such as the above with five or less occupants shall be classified as a
residential use group.
Recommendation Number 3 (Draft Recommendation 4)
To ensure that the BNBC covers the same dwelling and sleeping units
required to provide accessibility according to the Act, the
regulations, and the Guidelines, it is recommended that the definition
of ``sleeping unit'' contained in Recommendation Number 1 be adopted
and that BNBC be revised as follows:
Modify Sections 1107.3.1, 1107.3.2, 1107.4.1.1 AND 1107.4.2 as
follows:
1107.3.1 Use Group I-1: In occupancies in Use Group I-1, at least
4 percent, but not less than one, of the resident sleeping rooms and
their bathing and toilet facilities shall be accessible. In addition,
board and care facilities, group homes, and convalescent facilities of
Group I-1 occupancies with four or more sleeping units shall comply
with the requirements for Type B sleeping units as required by 1107.4.2
with the same exceptions as provided for in Section 1107.4.2.
1107.3.2 Use Group I-2: In nursing homes of Use Group I-2, at
least 50 percent, but not less than one, of the patient sleeping rooms
and their bathing and toilet facilities shall be accessible. In
addition, in nursing homes of Group I-2 in structures with four or more
sleeping units, all sleeping units shall comply with the requirements
for Type B sleeping units required by 1107.4.2 with the same exceptions
as provided for in Section 1107.4.2.
[[Page 15788]]
1107.4.1 Accessible guestrooms: In occupancies in Use Group R-1
containing six or more guestrooms, not less than one accessible
guestroom for the first 30 guestrooms shall be provided, and one
additional accessible guestroom for each additional 100 guestrooms or
fraction thereof shall be provided. In hotels with more than 50
guestrooms, roll-in type showers shall be provided in one-half, but not
less than one, of the required accessible guestrooms. In addition, in
occupancies in Use Group R-1 sleeping units in structures with four or
more sleeping units, sleeping units shall comply with the requirements
for Type B sleeping units as required by 1107.4.2 with the same
exceptions as provided for in Section 1107.4.2.
1107.4.1.1 Boarding houses: Lodging houses and congregate
residences with multiple bedrooms or spaces for more than six occupants
shall be provided with the minimum number of accessible guestrooms as
required by Section 1107.4.1. The guestrooms shall be accessible in
accordance with CABO A117.1 listed in Chapter 35. In addition, lodging
houses and congregate residences with four or more sleeping units for
more than six occupants shall comply with the requirements for Type B
sleeping units as required by 1107.4.2 with the same exceptions as
provided for in Section 1107.4.2.
1107.4.2 Accessible dwelling and sleeping units: In occupancies in
Use Group R-2 containing four or more dwelling or sleeping units and in
occupancies in Use Group R-3 where there are four or more dwelling or
sleeping units in a single structure, all dwelling and sleeping units
shall be Type B. In occupancies in Use Group R-2 containing more than
20 dwelling units, at least 2 percent, but not less than one, of the
dwelling units shall be Type A dwelling units in accordance with CABO
A117.1 listed in Chapter 35. In occupancies in Use Group R-2 and R-3,
all rooms and spaces available to the general public and all such
spaces available for the use of the residents serving accessible
dwelling and sleeping units shall be accessible.
Exceptions:
1. In buildings without elevators, multistory dwelling units are
not required to comply with the requirements for Type B dwelling units.
2. The requirement for Type B dwelling and sleeping units shall not
apply to dwelling or sleeping units that are both located above the
first level containing dwelling or sleeping units and that are not
provided with elevator access thereto.
3. Where multiple buildings on a site are each not equipped with
elevators, the percentage of required ground floor Type B dwelling and
sleeping units shall be equal to the percentage of buildings on the
entire site having grades of less than 10 percent. The site grade shall
be based on the site conditions prior to development. In no case shall
the number of Type B dwelling or sleeping units be less than 20 percent
of the ground floor dwelling or sleeping units on the entire site.
4. In areas where buildings are required to be constructed in
accordance with Section 3107.0, the required number of Type A and Type
B dwelling units and Type B sleeping units shall not apply * * *
5. Recreational facilities in accordance * * *
6. Dwelling and sleeping units required to be Type B dwelling or
sleeping units shall be permitted to be designed and constructed as
Type A dwelling units.
7. Group homes intended to be occupied by a single household and
detached single family homes occupied by a single household.
Note: See other changes to 1107.4.2 including Exceptions 1, 3,
and 4 below under Recommendation numbers 7, 8, 9, and 17.
Definition of Building and Structure--(Draft Recommendation Number 5)
In this recommendation, the Department recommended that the
Exceptions to Section 1107.4.2 use the term ``structure'' instead of
``building.'' This was recommended both for consistency with the
charging paragraph, and in order to ensure that the intent of the code,
that, for purposes of accessibility, BNBC treats dwelling units in
buildings separated by firewalls as a single structure. Based on the
public comments the Department received on this recommendation, the
Department has withdrawn this recommendation.
Ground Floor--(Draft Recommendation Number 6)
BNBC defines Ground Floor Dwelling Unit as follows:
Ground Floor Dwelling Unit (Section 1102.0)--For application of
the accessibility requirements, a ground floor dwelling unit is a
dwelling unit with a primary entrance and habitable space at ground
level or the lowest floor containing dwelling units, whether that
floor is at or above grade.
The regulations define ``ground floor'' as a ``floor of a building
with a building entrance on an accessible route. A building may have
one or more ground floors.'' 24 CFR 100.202. The Guidelines further
state: ``Where the first floor containing dwelling units in a building
is above grade, all units on that floor must be served by a building
entrance on an accessible route. This floor will be considered to be a
ground floor. 56 FR at 9500.
If a building is built into a hill, for example, and the front and
the back of the building have entrances to dwelling units at grade, but
at different elevations, the ground floor dwelling units on both levels
are covered under the Guidelines. See the Questions and Answers About
the Guidelines question number 6. 59 FR at 33364.
In Section 1107.4.2, BNBC requires that all dwelling units in Use
Group R-2 containing four or more dwelling units, and in Use Group R-3
where there are four or more dwelling units in a single structure be
Type B dwelling units. However, this section provides the following
exception to this requirement:
The requirement for Type B dwelling units shall not apply to
dwelling units that are both located above the first level containing
dwelling units and that are not provided with elevator access.
According to BNBC, in the example above, the level at the lowest
elevation is the only level required to have accessible dwelling units.
Because the Guidelines clearly state that a ground floor is a floor of
a building with a building entrance on an accessible route and that
there can be more than one ground floor, it is clear in the example
above that both levels of that building built into the hill are
considered ``ground floors'' and must comply with the Guidelines.
BNBC, Section 1102, defines the term ``ground floor dwelling unit''
as a dwelling unit with a primary entrance and habitable space at
ground level or the lowest floor containing dwelling units, whether
that floor is at or above grade. However, BNBC does not refer to the
term in its provisions for accessible dwelling units (Section 1107.4.2,
Accessible dwelling units). It is clear that ground floor units can be
at or above grade, but it is unclear that there can be more than one
ground floor, or ground floor units on different levels of a building.
In its draft report, the Department offered a recommendation that
the BNBC modify its definition of ``ground floor dwelling unit'' and
refer to the revised term ``ground floor'' in Exception 2, Section
1107.4.2, Accessible dwelling units. As the Department stated in the
introduction to this report, it is mindful of the fact that the
language in the regulations and the Guidelines is not couched in
building code terminology. The Department is,
[[Page 15789]]
therefore, withdrawing this recommendation. However, the Department
maintains that the BNBC is inconsistent with the Act, the regulations
and the Guidelines with respect to requiring additional ground floors
to be accessible. The Department will work with the model code
organizations, and any other interested persons, to develop alternative
language that will address this issue to the Department's satisfaction.
In addition, during review of the public comments, two additional
concerns arose: (1) Whether or not the BNBC scoping language, in
combination with the definition of ``ground floor dwelling unit,''
makes it clear that there must be at least one ground floor, and (2)
whether the language at Exception 2 of 1107.4.2 results in requiring
builders to make the first level containing dwelling units of a
building accessible even if it were more practical to make a different
floor (such as the second floor) containing dwelling units accessible
when that floor is closer to the grade, even if not ``at grade.'' The
Department will, however, work with the model code organizations, and
any other interested persons, to develop alternative language that will
address this issue to the Department's satisfaction.
In the meantime, the Department believes that owners, builders,
developers, designers, architects and others involved in the design and
construction of housing covered by the Act must apply the Department's
definition of ``ground floor'' when making determinations whether
dwelling units or sleeping units in a non-elevator building with four
or more such units are required to comply with the Act.
Buildings Connected by Breezeways or Stairways--(Draft Recommendation
Number 7)
The regulations define a building as ``a structure, facility or
portion thereof that contains or serves one or more dwelling units.''
24 CFR 100.201. Based on that definition, a structure with three
dwelling units that is structurally connected to another structure with
three units, by a stairway or breezeway, for example, is considered one
covered multifamily dwelling with six dwelling units.
In most cases, under BNBC, two structures that are connected by a
breezeway or stairway, for example, and share the same roof as the
breezeway or stairway are also considered one building. As a result, if
the total units in both structures equals four or more, then the
building must comply with the BNBC's accessibility provisions.
It appears, however, that in cases where the breezeway or stairway
that structurally connects both buildings does not provide the only
means of egress and does not share the same roof as the two structures,
whether or not it is considered one building must be determined by BOCA
on a case-by-case basis. In addition, in some cases, BOCA considers
walkways, breezeways, and stairways accessory structures and not
integral to the building. If they are determined to be accessory
structures, each building that they connect is examined separately. As
a result, BNBC may not meet the requirements of the Guidelines in terms
of covered units connected by breezeways or stairways.
Recommendation Number 4 (Draft Recommendation 7)
It is recommended that BNBC be modified to include a revision to
Section 3106.1.1, Separate structures, as follows:
3106.1.1 Separate structures. Connected buildings shall be
considered to be separate structures. For purposes of calculating
the number of Type B dwelling and sleeping units as required by
Chapter 11, structurally connected buildings and buildings with
multiple wings shall be considered one structure.
Multistory Dwelling Units--(Draft Recommendation Number 8)
The regulations determined that a multistory dwelling unit that
does not have an elevator internal to the unit that is located in a
building that does not have an elevator is not a ``covered multifamily
dwelling'' because the entire unit is not on the ground floor. 54 FR at
3244. The Guidelines define a ``multistory dwelling unit'' as a
dwelling unit with finished living space located on one floor and the
floor or floors immediately above or below it. 56 FR at 9500. A
``single-story dwelling unit is defined as a dwelling unit with all
finished living space located on one floor. 56 FR at 9501.
BNBC includes the following definitions in Section 1102.1:
Multistory dwelling unit. For application of the accessibility
requirements, this term shall mean a dwelling unit with habitable or
bathroom space located on more than one story.
BNBC defines ``habitable space'' (Section 1202) as a space in a
structure for living, sleeping, eating or cooking. Bathrooms, toilet
compartments, closets, halls, storage or utility spaces and similar
areas are not considered habitable spaces.
According to BNBC's definition of ``multistory dwelling unit,'' a
unit is considered multistory if one level contains living or
``habitable'' space and the floor next above or below contains only a
bathroom. According to the definitions in the Guidelines, and the
factors outlined above that the Department would consider in making a
determination as to whether or not the unit is a multistory unit, a
two-level unit with only a bathroom, or only a bathroom and storage
space on one level, is not a multistory dwelling unit because finished
living space must be located on both floors. 56 FR at 9500-01. Neither
bathroom space alone nor a combination of bathroom space and storage
space constitute living space. BNBC's definition of ``multistory
dwelling unit'' does not meet the Act, regulations or Guidelines.
Recommendation Number 5 (Draft Recommendation 8)
As a result, it is recommended that the reference to ``or bathroom
space'' in the BNBC's definition of ``multistory dwelling unit'' be
deleted as follows:
Section 1102, Definitions:
Multistory dwelling unit: For application of the accessibility
requirements, this term shall mean a dwelling unit with habitable
space located on more than one story.
Single-Story Unit With a Loft/Mezzanine--(Draft Recommendation Number
9)
Under Requirement 4 of the Guidelines, a single-story unit may have
a loft without the requirement that there be an accessible route to the
loft; provided that all other parts of the dwelling unit are on an
accessible route. 56 FR at 9507. Only one loft, or raised or sunken
area, can be provided within a room and it cannot interrupt the
accessible route throughout the remainder of the dwelling unit. These
``special design features'' cannot contain toilet facilities. 56 FR at
9507.
BNBC does not define or use the term loft, and instead uses the
term ``mezzanine,'' and defines this term as follows:
Section 502: ``Mezzanine'' means an intermediate level or levels
between the floor and ceiling of any story with an aggregate floor area
of not more than one-third of the area of the room in which the level
or levels are located.
BNBC Section 1107.4.3, Accessible route, includes an exception that
states that mezzanines, and raised or sunken floors in Type B dwelling
units are not required to be accessible provided they do not contain or
interrupt the accessible route to the only bathing facility, lavatory,
water closet or living,
[[Page 15790]]
eating, sleeping or cooking areas in the dwelling unit. This provision
implies that if there are two bathrooms or sleeping areas within a Type
B unit, a mezzanine or raised or sunken area is permitted to interrupt
the route to one bathroom or sleeping area, which does not meet the
Guidelines.
BNBC does not state that only one of these ``special design
features'' is permitted within a room in a Type B dwelling unit, and
does not require that if a mezzanine has an enclosed area or a toilet
or bathing facility then it must be located on an accessible route.
Recommendation Number 6 (Draft Recommendation 9)
To address these inconsistencies it is recommended that BNBC delete
Exception 2, Section 1107.4.3 as currently written and replace it with
the following language:
Within Type B dwelling units one of the following is not
required to be on an accessible route:
1. A raised floor area in a portion of a living, dining, or
sleeping room; or
2. A sunken floor area in a portion of a living, dining, or
sleeping room; or
3. A mezzanine that does not have plumbing fixtures or an
enclosed habitable space.
V. Seven Specific Design and Construction Requirements
The Guidelines specify seven requirements relating to accessibility
which reflect the language of the Act and the regulations. Compliance
with the provisions of the Guidelines constitutes a safe harbor for
compliance with the requirements of the Act. The Act itself references
the ANSI A117.1 standard as a means for meeting the technical
requirements of the Act. As discussed in the Department's policy
statement, at the time the Act was passed and the Guidelines were
written, ANSI A117.1-1986 was in effect. Since that time, there have
been two additional editions of ANSI A117.1 published, the CABO/ANSI
A117.1 in 1992 and the ICC/ANSI A117.1 in 1998.
The Department believes that compliance with either of these newer
editions of the ANSI-A117.1 constitutes an additional safe harbor in
terms of demonstrating compliance with the technical provisions of the
Act's accessibility requirements. It is, of course, still necessary to
refer to the Act and the regulations, or the Guidelines, for
implementing the scoping requirements. The Department believes that
code officials may rely on the edition of ANSI A117.1 that has been
adopted by the code organization or state or local jurisdiction, if it
has been adopted without modifications and is uniformly enforced.
BNBC utilizes the technical criteria contained in CABO/ANSI A117.1-
1992, and thus, HUD considers any BNBC requirements that reflect that
criteria to meet the requirements of the Act, even where they differ in
small part from the ANSI-1986 criteria.
Requirement 1: Accessible Building Entrance on an Accessible Route
The Guidelines set forth specifications to implement the
requirements of 24 CFR 100.205(a) that all covered multifamily
dwellings shall be designed and constructed to have at least one
building entrance on an accessible route, unless it is impractical to
do so because of terrain or unusual characteristics of the site. 56 FR
at 9503.
Requirement 1 of the Guidelines includes specifications for
providing an accessible entrance on an accessible route, and explains
that the requirements apply to a single building on a site and to
multiple buildings on a site. In addition, Requirement 1 includes
specifications for determining site impracticality based on terrain and
unusual site characteristics. 56 FR at 9503-04. However, the Guidelines
specify that covered multifamily dwellings with elevators shall be
designed and constructed to provide at least one accessible entrance on
an accessible route, regardless of terrain or unusual characteristics
of the site. 56 FR at 9504.
BNBC's provisions relating to an accessible building entrance on an
accessible route are consistent with the Guidelines with the following
exceptions.
Site Impracticality Due to Terrain
The Guidelines set forth two tests to assess site impracticality
due to terrain--the individual building test and the site analysis
test. 56 FR at 9503-04.
Individual Building Test--This test may be used for all sites, but
must be used for sites with a single building having a common entrance
for all units. 56 FR at 9503-04.
Site Analysis Test--May be used for all sites, including those with
multiple buildings and single buildings with multiple entrances serving
individual dwelling units or clusters of dwelling units except sites
with a single building having a common entrance for all units. This
test has three steps. 56 FR at 9503-04.
Step A requires the calculation of the percentage of total
buildable area of the undisturbed site with a natural slope of less
than 10%. A professional licensed engineer, landscape architect,
architect or surveyor must certify the analysis of the slope. 56 FR at
9504.
Step B states that the percentage of ground floor units that must
be made accessible should be equal to the total buildable area of the
undisturbed site (not including floodplains, wetlands, or other
restricted areas) that has an existing natural grade of less than 10%
slope (previously determined in Step A). 56 FR at 9504.
Step C requires that in addition, all ground floor units in a
building, or ground floor units served by a particular entrance, shall
be made accessible if the entrance to the units is on an accessible
route, defined as a walkway with a slope between the planned entrance
and a pedestrian or vehicular arrival point that is no greater than
8.33%. In some cases, application of Step C will result in a greater
number of accessible units being required. 56 FR at 9504.
For example, according to the Guidelines' site analysis test for
determining impracticality due to terrain, if 60% of the total area of
an undisturbed site has an existing natural grade of less than 10%
slope, then 60% of the ground floor units are required to be served by
an accessible entrance on an accessible route. If we construct two
buildings not served by elevators on that site, each with 20 ground
floor units for a total of 40 ground floor dwelling units on the entire
site, then 24 ground floor dwelling units (60% of ground floor units)
must have an accessible entrance on an accessible route. In addition,
according to step C of the site analysis test, all ground floor units
in the building, or ground floor units served by a particular entrance,
shall be made accessible if the entrance to the units is on an
accessible route.
Variances Related to the Site Analysis Test--(Draft Recommendation
Number 10)
Section 1107.4.2, Exception 3, attempts to correspond to Steps A
and B of the site analysis test. However, it provides that where
multiple buildings on a site are each not equipped with elevators, the
percentage of required ground floor Type B dwelling units shall be
equal to the percentage of buildings on the entire site having site
grades of 10 percent or less, and not the percentage of buildable area
having site grade of less than 10 percent which is required by the
Guidelines. 56 FR at 9504. Thus, BNBC does not meet the specifications
of the Guidelines.
BNBC also fails to provide equivalent language to Step C--i.e., it
does not require that, in addition to the percentage of ground floor
units required to be accessible, all ground
[[Page 15791]]
floor units in buildings, or ground floor units served by a particular
entrance, must be made accessible if the entrance to the units is on an
accessible route. 56 FR at 9504. Therefore, BNBC does not meet this
aspect of the Guidelines.
In addition, according to the Guidelines, regardless of site
considerations, an accessible entrance served by an accessible route is
practical whenever an elevator connects parking with a ground floor, in
which case all ground floor units are covered, or whenever an elevated
walk with a slope no greater than 10% is planned between an entrance
and a pedestrian or vehicular arrival point. 56 FR at 9504. BNBC does
not include any language that reflects these requirements. As a result,
BNBC does not meet the provisions of the Guidelines on these issues as
well.
Recommendation Number 7 (Draft Recommendation 10)
In order to address these inconsistencies, it is recommended that
Exception 3, Section 1107.4.2 be revised as follows:
Where multiple structures on a site are each not equipped with
elevators, the percentage of required ground floor Type B dwelling
and sleeping units shall be equal to the percentage of the entire
site having grades, prior to development, which are less than 10%;
but in no case shall the number of Type B dwelling and sleeping
units be less than 20 percent of the ground floor dwelling and
sleeping units on the entire site. In addition to the percentage
established, all ground floor dwelling and sleeping units in a
structure, or ground floor dwelling and sleeping units served by a
particular entrance shall be Type B if any one of the following
applies:
3.1 The slope between the entrance to the dwelling or sleeping
units and a pedestrian or vehicular arrival point is no greater than
8.33%; or
3.2 An elevator provides access to the ground floor only; or
3.3 An elevated walkway with a slope not exceeding 10 percent
is planned between an entrance and a pedestrian or vehicular arrival
point. The slope of the walkway, in such cases shall be reduced to
no greater than 8.33%.
Variance Related to Buildings With Elevators--(Draft Recommendation
Number 11)
According to the Guidelines, buildings with elevators must provide
an accessible entrance on an accessible route regardless of site
impracticality. 56 FR at 9504. BNBC does not reflect this requirement
in Section 1107.4.2, Exception 4.
Recommendation Number 8 (Draft Recommendation 11)
It is recommended that Exception 4, Section 1107.4.2 be modified so
that the Exception does not apply to buildings with elevators.
In areas where buildings are required to be constructed in
accordance with Section 3107.0, the required number of Type A and
Type B dwelling units and Type B sleeping units shall not apply to a
site where the lowest floor or the lowest structural building
members of non-elevator buildings is required to be at or above the
base flood elevation resulting in * * *
Requirement 2: Accessible and Usable Public and Common Use Areas
The Act and the regulations provide that covered multifamily
dwellings with a building entrance on an accessible route be designed
and constructed in a manner so that the public and common use areas are
readily accessible to and usable by people with disabilities. 42 U.S.C.
3604 (f)(3)(C)(i); 24 CFR 100.205 (c)(1). The Guidelines' Requirement 2
cites the appropriate section of the ANSI A117.1-1986 Standard for the
technical provisions for 15 accessible elements or spaces, and
describes the application of the specifications including modifications
to the referenced standard. 56 FR at 9505. Following are the 15 basic
elements or spaces for accessible and usable public and common use
areas or facilities:
Accessible routes,
Protruding objects,
Ground and floor surface treatments,
Parking and passenger loading zones,
Curb ramps,
Ramps,
Stairs,
Elevators,
Platform lifts,
Drinking fountains and water coolers,
Toilet rooms and bathing facilities,
Seating, tables, or work surfaces,
Places of assembly,
Common-use spaces and facilities,
Laundry rooms.
56 FR at 9505
When a variance is identified in the BNBC that does not meet the
requirements of the Guidelines for each of the 15 elements or spaces
above, they are noted below.
Scoping of Accessibility Requirements for Public and Common Use
Facilities--(Draft Recommendation Number 12)
As stated above, the Act, regulations, and Guidelines require
accessible public and common use areas for all covered multifamily
dwellings. 42 U.S.C. Sec. 3604 (f)(3)(c)(i); 24 CFR 100.205 (c) (1);
Section 1107.4.2 of the BNBC states that in occupancies in Use Group R-
2, all rooms and spaces available to the general public and all such
spaces available for the use of the residents serving accessible
dwelling units shall be accessible. This provision does not include Use
Group R-3 in that sentence. However, in Section 1107.4.3, Accessible
Route, BNBC states the following:
In occupancies in Use Group R-2 and R-3, at least one accessible
route shall connect accessible building or facility entrances with all
accessible dwelling units within the building or facility and with
those exterior and interior spaces and facilities that serve the
accessible dwelling units.
It is clear from Section 1107.4.3 that accessible routes to public
and common areas are intended to be required in both Use Groups R-3 and
R-2.
Recommendation Number 9 (Draft Recommendation 12)
For clarity, it is recommended that Section 1107.4.2 be modified to
include Use Group R-3 as follows:
Section 1107.4.2, Accessible dwelling units:
In occupancies in Use Group R-2 and R-3, all rooms and spaces
available to the general public and all such spaces available for
the use of the residents serving accessible dwelling and sleeping
units shall be accessible.
Accessible Route(s)--(Draft Recommendation Number 13)
Requirement 1, paragraph (5) of the Guidelines states that if the
slope of the finished grade between covered multifamily dwellings and a
public or common use facility exceeds 8.33%, or where other physical
barriers or legal restrictions, all of which are outside the control of
the owner, prevent the installation of an accessible pedestrian route,
an acceptable alternative is to provide access via a vehicular route,
so long as necessary site provisions such as parking spaces and curb
ramps are provided at the public or common use facility. 56 FR at 9504.
BNBC, Section 1107.4.3 contains language that is comparable to the
Guidelines with one exception. That section states:
If the slope of the finished ground level between accessible
facilities and buildings exceeds one unit vertical in 12 units
horizontal, or where physical barriers prevent the installation of an
accessible route, a vehicular route with parking at each accessible
facility or building is permitted in place of the accessible route.
BNBC does not include language making it clear that accessible
parking must be available at the accessible
[[Page 15792]]
facility if access is provided by a vehicular route. In addition,
reference must be made to ``structures'' and not ``buildings'' (see
discussion of the definition of ``building'' above.)
Recommendation Number 10 (Draft Recommendation 13)
It is recommended that BNBC, Section 1107.4.3, Exception 1, be
modified to include the following language:
If the slope of the finished ground level between accessible
facilities and structures exceeds one unit vertical in 12 units
horizontal (1:12), or where physical barriers prevent the
installation of an accessible route, a vehicular route with
accessible parking in accordance with Section 1105 at each public
and common use facility is permitted in place of the accessible
route.
Headroom--(Draft Recommendation Number 14)
Based on the public comments received, the Department has
determined that the BNBC adequately addresses this issue.
Parking and Passenger Loading Zones--(Draft Recommendation Numbers 15,
16, 17 and 18)
The Guidelines provide that accessible parking on a route
accessible to persons in wheelchairs be provided for at least 2% of the
covered dwelling units, and that there be accessible visitor parking
sufficient to provide access to grade level entrances of covered
multifamily dwellings, and accessible parking at facilities. 56 FR at
9505.
Section 1105, Parking Facilities, of the BNBC requires that, where
parking is provided, accessible parking spaces complying with CABO/ANSI
A117.1 be provided in compliance with Table 1105.1, except as required
by Sections 1105.2 and 1105.3.
Section 1105.2, Use Group R-2, of Section 1105, Parking Facilities,
requires that 2% of parking spaces provided for occupancies in use
Group R-2 which are required to have accessible dwelling units shall be
accessible. Section 1105.3 does not apply to Use Groups R-2 or R-3 and
is not applicable. Table 1105.1 stipulates the minimum number of
accessible spaces required according to the total number of parking
spaces provided. Since 1105.2 clearly applies to Use Group R-2 and not
R-3, one must refer to Table 1101.1 for the required minimum number of
accessible spaces required for Use Group R-3.
Recommendation Number 11 (Draft Recommendation 15)
It is recommended that Section 1105.2, Use Group R-2, be modified
to include R-3 occupancies, as follows:
Section 1105.2, Use Group R-2 and R-3
Two percent of parking spaces provided for occupancies in Use
Group R-2 and Use Group R-3 which are required to have accessible
dwelling or sleeping units shall be accessible.
Section 1105.1, Required, should be modified to:
Where parking is provided, accessible parking spaces complying
with CABO/ANSI A117.1-1992 listed in Chapter 35 shall be provided in
compliance with Sections 1105.2 and 1105.3.
By modifying Section 1105.2 to include the reference to the R-3 Use
Group, Table 1105.1 (required minimum number of accessible spaces for
R-3 dwellings) and any reference to it may be eliminated.
The Questions and Answers About the Guidelines (Question and Answer
14c) states that where there are several individual parking garages
grouped together either in a separate area of the building (such as at
one end of the building, or in a detached building), for assignment or
rental to residents, at least 2% of the garages must be at least 14'2"
wide and have a vehicular door at least 10' wide. 59 FR at 33366. This
assumes that garage parking is the only type of parking provided at the
site.
Question and Answer 14c provides the minimum requirement for the
width of accessible garages and garage doors. The minimum widths
provide enough space for an automobile to enter the garage, and for a
passenger or driver using a wheelchair to exit through the garage door
without interference by the automobile. However, the minimum
requirements do not preclude a garage design that provides equivalent
or greater accessibility. For example, a designer may choose to design
a garage with a door that is 8 feet wide, but provides a separate
accessible exit door through which the driver or the passenger may
exit, provided that it connects to the accessible route to the entrance
of the unit.
The BNBC does not provide minimum requirements for these garages,
and therefore, does not meet this provision of the Guidelines.
The Guidelines provide that if provided at the site, accessible
visitor parking sufficient to provide access to grade level entrances
of covered multifamily dwellings, and accessible parking at facilities
must be provided. The Guidelines also require accessible parking on the
same terms and with the full range of choices (e.g., surface parking or
garage) that are provided to other residents of the project. 56 FR at
9505.
In addition, the Questions and Answers About the Guidelines provide
further clarification of the parking requirements at Q&A 14(b), which
clarified that when more than one type of parking is provided, at least
one space for each type of parking should be made accessible even if
this number exceeds two percent.
The Department is not recommending that the BNBC revise any of its
broader scoping requirements for parking. However, the BNBC does not
include comparable language in Section 1105, Parking Facilities, with
respect to the above variances. Therefore, the BNBC does not meet the
provisions of the Guidelines with respect to these issues.
Recommendation Number 12 (Draft Recommendation 16)
In order to address these two inconsistencies, it is recommended
that BNBC include a reference to R-3 in Section 1105.2, Group R-2, as
indicated in Recommendation 11 above, and modify that Section as
follows:
At least 2% of parking garages provided for R-2 and R-3
occupancies required to have accessible dwelling or sleeping units
where there are several individual garages grouped together, either
in a separate area of a building or in a detached building, for
assignment or rental to residents, must be at least 14'2" wide and
have a vehicular door at least 10' wide. * * *
* * * Where accessible parking spaces are provided, at least one
of each type (surface parking, carports, or garage) shall be
provided.
* * * Where visitor parking is provided, at least one accessible
visitor parking space shall be provided.
* * * Where parking is provided at public and common use
facilities that serve accessible buildings, at least one accessible
parking space shall be provided.
It is not clear in BNBC whether passenger loading zones are
required to comply with the requirements of the Guidelines.
Recommendation Number 13 (Draft Recommendation 17)
In order to ensure that passenger loading zones comply with the
requirements of the Guidelines, it is recommended that BNBC add a
provision under Section 1105 which states the following:
When provided, passenger loading zones shall be located on an
accessible route. Passenger loading zones shall be designed and
constructed in accordance with CABO/ANSI A117.1-1992.
Table 1105.1, Accessible Parking Spaces includes a note that states
``the
[[Page 15793]]
accessible space shall be provided but is not required to be designated
as reserved for physically disabled.'' In addition, Section 1109.2,
Signs, indicates that elements shall be identified by the International
Symbol of Accessibility at four locations, the first of which states
that it is required at accessible parking spaces required by 1105.1
(Parking Facilities) except where the total parking spaces provided are
five or less. This does not meet the requirements of the Guidelines
which require signage at all accessible parking spaces.
Recommendation Number 14 (Draft Recommendation 18)
It is recommended that BNBC delete this language from provision 1
under Section 1109.2. If deleted, the note in Table 1105.1 will no
longer apply.
Stairs--(Draft Recommendation Number 19)
The Guidelines require that accessibility be provided on stairs
located along accessible routes connecting levels not connected by an
elevator. 56 FR at 9505. For example, a ground floor entry might have
steps up to a bank of mailboxes, with a ramp located beside the steps.
The stairs in this case are required to meet the ANSI A117.1
specification, since they will be used by people with disabilities for
whom stairs are more usable than ramps. However, stairs are not a
component of an accessible route.
There are variances between the provisions of BNBC and the
Guidelines' requirements for stairs along accessible routes regarding
tread and riser measures, and handrails for example.
Recommendation Number 15 (Draft Recommendation 19)
It is recommended that BNBC include a provision for stairways under
Section 1108, Building Features and Facilities as follows:
Stairways
Stairways located along accessible routes connecting floor
levels that are not connected by an elevator shall be designed and
constructed to comply with CABO/ANSI A117.1-1992.
Alternatively, the Department recommends that BOCA consider
adopting the technical requirements for residential elevators found
in ICC/ANSI A117.1-1998.
Elevators--(Draft Recommendation Number 20)
The Guidelines require that elevators on accessible routes be
accessible according to the technical specifications of ANSI A117.1,
Section 4.10, Elevators. Section 1108.4 of BNBC, Elevators and Stairway
and Platform Lifts, states that all passenger elevators on an
accessible route shall be accessible. It also states that elevators
required to be accessible shall be designed and constructed to comply
with Section 3006 which references conformance with CABO/ANSI A117.1-
1992.
The technical specifications for elevators required by both the
Guidelines and BNBC are equivalent. However, BNBC provides an exception
to Section 1108.4, Elevators, that exempts elevators within dwelling
units from being accessible. This does not meet the requirements of the
Guidelines because elevators within multistory units must provide
accessibility.
Recommendation Number 16 (Draft Recommendation 20)
It is recommended that the exception to 1108.4 be eliminated.
Recreational Facilities
The Guidelines, in Requirement 2, state that: ``If provided in the
facility or at the site; (a) where multiple recreational facilities
(e.g., tennis courts) are provided sufficient accessible facilities of
each type to assure equitable opportunity for use by persons with
handicaps'' shall be provided. These facilities must be connected by an
accessible route to the covered dwelling units or a vehicular route if
an accessible route is not possible. The BNBC Section 1107.4.4 requires
25%, but not less than one, of recreational facilities of each type in
each occupancy group to be accessible.
The Department concludes that the Guidelines may be interpreted to
be stricter than the requirements of the model codes with respect to
the requirement for accessible recreational facilities because an
interpretation of ``sufficient to provide equitable opportunity for
use'' may result in determinations that recreational facilities that
serve different buildings containing accessible dwelling units must be
accessible, even if this means making all of the same type of
recreational facility accessible (such as two swimming pools on a large
site, each which serves different buildings on the site).
For example, one out of four recreational facilities of the same
type serving a specific residential use group is code compliant (25%
but not less than one), but may not be considered ``sufficient'' by the
Department if the facilities of the same type are widely spread across
a large site serving one building, or spread across a site on which
there are multiple buildings.
However, because this matter was not included in the draft reports,
and there has not been an opportunity for public participation in a
resolution of this matter, the Department is not including a
recommendation to resolve this matter. The Department will work with
all interested parties to address this matter.
Requirement 3: Usable Doors
The Act and regulations require that all doors designed to allow
passage into and within a covered dwelling unit be sufficiently wide to
allow passage by persons in wheelchairs. 42 U.S.C. Sec. 3604
(f)(3)(C)(ii); 24 CFR 100.205(c)(2). The Guidelines set forth criteria
to meet this requirement. The Guidelines also set forth additional
guidance regarding doors that are a part of an accessible route in the
public and common use areas of multifamily dwellings and to doors into
and within individual dwelling units. 56 FR at 9506.
The Guidelines provide the following:
On accessible routes in public and common use areas, and for
primary entry doors to covered units, doors that comply with ANSI
A117.1 4.13 will meet the Act's requirements for usable doors; and
Within individual dwelling units, doors intended for user passage
through the unit which have a clear opening of at least 32 inches
nominal width when the door is open 90 degrees, measured between the
face of the door and the stop, would meet the Act's requirement.
The Department has determined that BNBC meets the requirements of
the Act, regulations, and the Guidelines for usable doors.
Requirement 4: Accessible Route into and Through the Covered
Dwelling Unit
The Act and regulations require that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed and constructed in such a manner that all premises within
covered multifamily dwelling units contain an accessible route into and
through the covered dwelling unit. 42 U.S.C. Sec. 3604
(f)(3)(C)(iii)(I); 24 CFR 100.205 (c)(3)(i). Requirement 4 of the
Guidelines sets forth criteria to meet this requirement. 56 FR at 9509-
10. BNBC meets the provisions of the Act, regulations, and Guidelines
with respect to Requirement 4, except the following:
Multistory Units in Elevator Buildings--(Draft Recommendation Number
21)
Among the criteria in Requirement 4 is the requirement that in
multistory dwelling units in buildings with elevators, the story of the
unit that is
[[Page 15794]]
served by the building elevator is the primary entry to the unit. 56 FR
at 9507.
BNBC, Section 1107.4.2, provides the following exceptions to the
requirement for Type B units as follows:
In buildings without elevators, multistory dwelling units are not
required to comply with the requirements for Type B units. Where a
multistory dwelling unit is provided with elevator service to only one
floor, the floor provided with elevator service shall comply with the
requirements for a Type B dwelling unit and a toilet facility shall be
provided on that floor.
Recommendation Number 17 (Draft Recommendation 21)
It is recommended that BNBC modify Section 1107.4.2, Exception 1,
as follows:
In buildings without elevators, multistory dwelling units are
not required to comply with the requirements for Type B dwelling
units. Where a multistory dwelling unit is provided with elevator
service to only one floor, the floor provided with elevator service
shall be the primary entry to the unit, shall comply with the
requirements for Type B dwelling units and a toilet facility shall
be provided on that floor.
Requirement 5: Light Switches, Electrical Outlets, Thermostats and
Other Environmental Controls in Accessible Locations
The Act and regulations require that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed and constructed so that all premises within the covered units
contain light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations. 42 U.S.C. 3604
(f)(3)(C)(iii)(II); 24 CFR 100.205(c)(3)(ii). Requirement 5 of the
Guidelines sets forth criteria to meet these requirements. 56 FR at
9507. BNBC meets the provisions of the Act, regulations, and Guidelines
with respect to Requirement 5.
Requirement 6: Reinforced Walls for Grab Bars--(Draft
Recommendation Number 22)
Requirement 6 of the Guidelines sets forth technical specifications
to meet 42 U.S.C. 3604(f)(3)(C)(iii)(III), 24 CFR 100.205(c)(3)(iii)
which specifies that all covered multifamily dwellings with a building
entrance on an accessible route shall be designed and constructed so
that all premises within the covered units contain reinforcements in
bathroom walls to allow later installation of grab bars around toilet,
tub, shower stall and shower seat, where such facilities are provided.
56 FR at 9509-10. BNBC refers to the International Plumbing Code, 1995,
for the technical specifications for reinforcement in walls for grab
bars.
Although it is the intent of the International Plumbing Code, 1995,
to require grab bar reinforcement at fixtures located away from walls,
sunken or raised tubs for example, one cannot make that clear
determination.
Recommendation Number 18 (Draft Recommendation 22)
It is recommended that BNBC add an exception under section 1108.2,
Toilet and bathing facilities as follows:
Section 1108.2 Toilet and bathing facilities:
Within dwelling and sleeping units required by 1107.4.2 to be
accessible, alternative reinforcement complying with CABO/ANSI
A117.1-1992 4.24 2.5 and 4.24.3 shall be provided for the mounting
of grab bars where fixtures are located away from walls.
Requirement 7: Usable Kitchens and Bathrooms
The Act and regulations provide that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed to have usable kitchens and bathrooms such that an individual
in a wheelchair can maneuver about the space. 42 U.S.C. 3604
(f)(3)(C)(iii)(IV); 24 CFR 100.205 (c)(3)(iv). Requirement 7 of the
Guidelines sets forth technical criteria to meet those requirements. 56
FR at 9511-15.
Usable Kitchens--(Draft Recommendation Number 23)
The Guidelines address a parallel approach to kitchen sinks in
Requirement 7 at 56 FR 9511. The parallel approach to the sink is
addressed in Figure 7(c). 56 FR at 9514. The ANSI A117.1-1986 standard
requires, with respect to sinks and lavatories, a forward approach with
clear floor space below, and illustrates the forward approach centered
on the sink/lavatory. (ANSI A117.1-1986, Fig.32 on page 50). The
Department's Guidelines allowed a departure from the ANSI standard. The
Guidelines permit the clear floor space to be designed for a parallel
position. 56 FR at 9511-12. While the Guidelines only show the clear
floor space centered on the lavatory [Fig. 7 (c)], it is equally
applicable to the sink.
The International Plumbing Code, 1995 which provides the technical
provisions for Type B kitchens does not require that the parallel
approach to sinks shall be centered on the sink which does not meet the
requirements of the Guidelines.
Recommendation Number 19 (Draft Recommendation 23)
It is recommended that BNBC add an exception to Section 1108.3,
Kitchens, as follows:
Exception: If a parallel approach is provided at the sink, it
shall be centered on the sink.
Usable Bathrooms--(Draft Recommendation Number 24)
The Guidelines provide two options for designing accessible
bathrooms. 56 FR at 9511. The first option requires a minimal level of
accessibility. This option requires that walls be reinforced for grab
bars and sufficient maneuvering space be provided within the bathroom
for a person using a wheelchair or other mobility aid to enter, close
the door, use the fixtures, reopen the doors and exit. 56 FR at 9511.
The second option for designing accessible bathrooms provides a
greater level of accessibility than that provided by the first option.
56 FR at 9511. The second option requires reinforced walls for grab
bars, clear space at specific locations within the bathroom to permit
use of the fixtures, and specific clearances for fixtures.
According to the Guidelines, only bathrooms on the accessible level
are subject to the requirements. If a powder room is the only facility
provided on the accessible level of a multistory dwelling unit; it must
comply with the first or second option for designing accessible
bathrooms and have reinforcement for grab bars. 56 FR at 9511.
As discussed in reference to kitchens above, the Guidelines require
the centering of the parallel approach on the lavatory. 56 FR at 9512.
The International Plumbing Code, 1995, does not require the centering
of the parallel approach on the lavatory basin which does not meet the
requirements of the Guidelines.
Recommendation Number 20 (Draft Recommendation 24)
It is recommended that BNBC add an exception under Section 1108.2
as follows:
Exception: If a parallel approach is provided at the lavatory,
it shall be centered on the lavatory.
[FR Doc. 00-6968 Filed 3-22-00; 8:45 am]
BILLING CODE 4210-32-P