Access Through Parking

Analysis of the Summary Judgment in MCIL v. Grant

By Tim Wheat 

EDITOR'S NOTE: Currently in Memphis a large Fair Housing lawsuit is in progress 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.

The Fair Housing Amendments Act of 1988 (FHA) requires accessible pedestrian routes between covered apartments and site facilities. In doing so, the federal law implies that all covered rental developments will have walkways connecting units and all the site amenities. 

Most developments easily follow this pattern and most renters expect to be able to walk to the tennis court, pool and office. In suburban Memphis; however, Grant Properties has attempted to redefine the federal mandate.

In the case MCIL v. Grant, the Defendants argued that because their “unique design,” they did not have to have sidewalks and therefore no accessible walkways between site amenities. Grant held that they have attempted to create the atmosphere of a subdivision in their apartment complex that does not include sidewalks. They have attempted to create the feel of single-family homes in the rental property, a feel that does not include walking to site facilities, but driving.

Grant Properties explained that their developments at Camden Grove and Wyndham are unique because each unit has an attached garage. “Vehicular access is an integral part of the design…” state the Defendants; therefore the residents may use a car as a primary way to get around. 

Fueling the Grant argument is the “vehicular access alternative” in the FHA. The guidelines allow for automobiles to be used for access if required parking at covered units is provided and an appropriate number of additional accessible parking spaces are at each facility that is unreachable by an accessible pedestrian route.

The FHA clearly states that vehicular access is only acceptable when creating an accessible pedestrian route is impossible or outside the owner’s control. In MCIL v. Grant however, the Defendants argued that vehicular access was an alternative to the requirement of accessible walkways because the car would be the primary form of transportation. Grant seems to want to replace sidewalks with parking lots, thus the developments were planned without walkways.

Judge Donald does not buy the Defendant’s argument quoting the preamble of the HUD Guidelines on this subject: “The Department’s expectation is that public and common use facilities generally will be on an accessible pedestrian route.” The Judge does not take a position on the viability of the “unique design” because the regulations do not have a position.

The Plaintiffs produced expert testimony with evidence that extensive grading occurred at the Camden site. It seems clear that the owners had the opportunity to level the property to make accessible routes possible. Because the ability to create accessible pedestrian routes was undoubtedly within the control of the owners, vehicular access is not a valid alternative. The Court notes “the United States (Plaintiff Intervener with MCIL) has an even more striking case at Wyndham, where the terrain is undisputedly flat prior to construction.”

Each covered unit does not have to be connected by an accessible walkway, but each site facility must have an accessible entrance on an accessible route. Parking does not replace the need for accessible pedestrian routes in the FHA.

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