What is Site Impracticality?

Analysis of the Summary Judgment in MCIL v. Grant

By Tim Wheat

EDITOR'S NOTE: Currently in Memphis a large Fair Housing lawsuit is proceeding with national implications. MCIL encourages you to learn more about the case and your Fair Housing rights. This article examines lessons learned by MCIL over the past five years since embarking on enforcement of the Fair Housing Amendments Act of 1988.

Steps at the front door? 
If you visit the Grant Properties at Wyndham or Camden Grove it is not difficult to picture the accessibility issues for the ground floor units; nearly all the apartments have steps at the front door. The Fair Housing Act (FHA) amended in 1988 requires these apartments “have at least one building entrance on an accessible route.”

The Wyndham Apartments have steps at both the porch and the threshold.

The Memphis Center for Independent Living, wondering why people with disabilities were having a difficult time finding a place to live, examined the first two requirements of the Fair Housing Act and sued several local apartment complexes that violated the Act. MCIL, joined by the US Department of Justice, also tried to stop the Richard and Milton GRANT Company from building inaccessible apartments at Camden Grove, but the injunction failed.

Last month Judge Donald granted a partial summary judgment that vindicated most of MCIL’s case. Although the injunction was unsuccessful and the GRANT Company continued to build the inaccessible apartment complex at Camden Grove, the summary judgment they are now facing may require large costs of retrofitting all covered units for accessibility and paying damages. 

Because the law that GRANT ignored states that apartments “shall be designed and constructed” to be accessible, the process of fixing the problem cannot simply be to add a ramp when a tenant needs accessibility. Unfortunately, misunderstanding “Site Impracticality” is what the Defendants claim made them feel that it was acceptable to add steps at the front entrance to most apartments. 

The Fair Housing Act requirement for an entrance on an accessible route is followed by this limiting statement: “…unless it is impractical to do because of the terrain or unusual characteristics of the site [24 CFR 100.205(a)].” The US Department of Housing and Urban Development (HUD) stated in FHA regulations that “Congress was sensitive to the possibility that certain natural terrain may pose unique building problems.”

HUD also provided two tests in the regulations for determining what terrain and unique conditions may limit the accessibility of ground-floor units. The Individual Building Test, which limits access to a building where the planned entrance is sloped greater than 10 percent, and the Site Analysis Test that establishes a minimum percentage of accessible units based on the buildable area of the undisturbed site.

The GRANT Company did not run either test before they built Wyndham or Camden Grove; however, once they were in court they attempted to claim that site impracticality. Judge Donald saw through this ploy stating:

“Defendants proffer post-construction measurements to support their position that an accessible route from the arrival point to the entry door cannot be created with a slope of 8.33% or less at any of the units. To meet their burden under the site impracticality test, Defendants essentially argue that they cannot comply with the FHA because the units, as built, do not comply with FHA requirements [01-2069 D/A p. 10-11].” 

Site Impracticality Must Be Determined Before Building
The first thing to understand about site impracticality is that it must be established in the design phase. The Individual Building Test requires a measurement of the undisturbed site, planned finish grade and the planned entrance. The Site Analysis Test calls for obtaining a topographic survey map of the undisturbed site. The origins of the tests clearly demand that accessibility be considered from the outset of the design process.

It is important to establish that these tests do not exempt units. The Judge pointed out the burden is on the “person or persons who designed or constructed the housing facility,” and that the FHA is to be “construed narrowly, in recognition of the important goal of preventing housing discrimination.” The Defendants argued that many of the ground floor units “should be exempted from the FHA for site impracticality;” but the guidelines do not discuss exemption. In fact, the Fair housing Design Manual only uses the term “exempt” in referring to base flood lines and tree saving ordinances.

The purpose of the tests is to establish the minimum number of covered units because of an arduous landscape that is hard to make accessible. “Exemption” seems to imply that the builder need not be concerned with access, but the FHA clearly intends to limit accessibility only when there is difficult terrain or unusual characteristics. Particularly in the Site Analysis Test, Step C “requires the builder/developer to review he site plan a second time to determine if additional accessible routes and/or entrances have been created that will increase the number of covered accessible units [FHA Design Manual p. 1.52].” 

The distinction of “exemption” is important because other apartment complexes in the Memphis area have suggested that units are exempt because of site impracticality. Hopefully MCIL v. GRANT will make it clear to them that this exemption does not exist and they may correctly understand their obligations under the FHA.

© 2004 Tim Wheat