HUD adopts Safe Harbour for Accessibility Provisions of Federal Fair Housing Act

On February 28, 2005, the Department of Housing and Urban Development ("HUD") published it's final report on the 2003 Uniform Building Code ("UBC"). By this action, HUD has said that if construction complies with the 2003 UBC, it will not be in violation of the accessibility requirements of the Federal Fair Housing Act. In order to obtain the "safe harbour" status for the UBC, the International Code Council (drafters of the UBC) agreed with HUD's interpretation that the UBC requires an accessible pedestrian route from site arrival points to accessible building entrances, unless site impracticality applies, along with two other relatively minor points. Since the UBC is used in many western states, including Hawaii, the safe harbour simplifies compliance with the accessibility requirements of the Federal Fair Housing Act.

The Federal Fair Housing Act ("FHA") includes provisions for accessibility for disabled individuals in new construction. The FHA requires the following for new construction:

1. the public use and common use portions of the dwellings must be readily accessible to and usable by disabled individuals;


2. the doors are designed to allow passage into and within the dwelling to a wheelchair; and


3. the dwellings contain certain features of "Adaptive Design".

Adaptive Design is a concept that was developed by Barrier Free Environments, Inc. in a technical manual for HUD called Adaptable Housing. The only features of adaptive design required by the FHA (42 U.S.C. 3604(f)(3)) are:

1. accessible route into and through the dwelling;


2. light, switches, electrical outlets and environmental controls in accessible locations;


3. reinforcements in bathroom walls to allow later installation of grab bars; and


4. usable kitchens and bathrooms such that an individual in a wheelchair can maneuver).

The statute (42 U.S.C. 3604(f)(4)) itself contains a safe harbor which permits projects to meet these three requirements by complying with ANSI A117.1. The addition of the 2003 version of the UBC adds a second safe harbour for the accessibility requirements for new construction.