[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

[[Page 15744]]

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