U.S. Department
of Justice
Housing And Civil Enforcement Cases Documents
Bradley J. Schlozman
Acting Assistant Attorney General
Steven H. Rosenbaum
Chief
Timothy J. Moran
Deputy Chief
Nancy F. Langworthy
Sara L. Niles
Attorneys
Housing and Civil Enforcement Section
Civil Rights Division
United States Department of Justice
950 Pennsylvania Ave, N.W. - G Street
Washington, D.C. 20530
202-616-8925/202-514-1116 - fax
James A. McDevitt
United States Attorney
Pamela J. DeRusha
Assistant United States Attorney
P.O. Box 1494
Spokane, Washington 99210
509-353-2767/509-784-5181 - fax
Attorneys for Plaintiff United States
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
SPOKANE DIVISION
| UNITED STATES OF AMERICA, Plaintiff, v. CEDAR BUILDERS, INC., d/b/a CEDAR Defendants. | C.A. No. CV-N-05- CONSENT DECREE |
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I. INTRODUCTION
A. Background
1. The Plaintiff United States of America and Defendants Cedar Builders, Inc., d/b/a Cedar Property Management; Cedar Springs Estates; Richard D. Naccarato; Cedar Chateau Estates Partnership; Cedar Chateau Estates B Partnership; Cedar Canyon Village, LLC (hereinafter, collectively, "Cedar Defendants"); and Defendant Glen A. Cloninger & Associates (hereinafter "Defendant Cloninger") have voluntarily agreed to enter into this Consent Decree contemporaneously with the filing of the United States' Complaint alleging that the defendants failed to design and construct certain apartment complexes in Spokane, Washington in accordance with the provisions of Title VIII of the Civil Rights Act of 1968 ("the Fair Housing Act"), as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3619, and that the Cedar Defendants also failed to design and construct those properties in accordance with Title III of the Americans with Disabilities Act, 42 U.S.C. § § 12181-12189 ("the ADA").
2. The United States' Complaint alleges that the defendants have violated the Fair Housing Act by failing to design and construct the following ten rental properties with the features of accessible and adaptable design set forth in 42 U.S.C. § 3604(f)(3)(C): Cedar Springs Estates I through IV, Cedar Creek Village I and II, Cedar Chateau Estates A and B, Cedar Forest Estates and Cedar Canyon Villas, in Spokane, Washington (together, "the subject properties"). The United States further alleges that the Cedar Defendants violated Title III of the ADA by failing to design and construct those portions of the subject properties that are places of public accommodation to be readily accessible to and usable by individuals with disabilities as required by 42 U.S.C. § 12183(a)(1) and the implementing regulations issued by the Department of Justice, 28 C.F.R. Part 36, including the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A (the Standards). Each of the subject properties contain rental offices, which are places of public accommodation covered by the ADA.
3. Cedar Springs Estates I is located at buildings numbered 1 through 16, 1015 E. Cozza Drive, Spokane, and consists of 208 apartments, 80 of which are ground-floor units; Cedar Springs Estates II is located at buildings numbered 17 through 30, 1110 E. Cozza Drive, Spokane, and consists of 170 apartments, 64 of which are ground-floor units; Cedar Springs Estates III is located at buildings numbered 31 through 45, 1011 E. Sharpsburg Avenue, Spokane, and consists of 208 apartments, 80 of which are ground-floor units; Cedar Springs Estates IV is located at buildings numbered 46 through 61, 7808 N. Morton Street, Spokane, and consists of 208 apartments, 80 of which are ground-floor units; Cedar Creek Village I and II are located at buildings numbered 1 through 32, 8424 N. Nevada Street, Spokane, and consist of a total of 416 apartments, 160 of which are ground-floor units; Cedar Chateau Estates A is located at buildings numbered 1 through 15, 13310 E. Mission Avenue, Spokane, and Cedar Chateau Estates B is located at buildings numbered 16 through 27, 13320 E. Mission Avenue, and together consist of a total of 342 apartments, 134 of which are ground-floor units; Cedar Forest Estates is located at buildings numbered 1 through 6, 4403 W. Winston Court, Spokane and consists of 72 apartments, 28 of which are ground-floor units; and Cedar Canyon Villas is located at buildings numbered 1 through 8, 5710 S. Hailee Lane, Spokane, and consists of 104 apartments, 40 of which are ground-floor units. Each of the ground-floor units at each of the ten properties was designed and constructed for first occupancy after March 13, 1991, and is therefore subject to the design and construction requirements of the Fair Housing Act.
4. Defendant Cedar Builders, Inc., a Washington corporation with its principal place of business in Spokane, Washington, was the construction manager with certain responsibilities related to the construction of each of the subject properties and, at all relevant times, has had an ownership interest in each of the subject properties.
5. Defendant Cedar Springs Estates, a Washington partnership, owned Cedar Springs Estates I through IV at the time of their development and construction. Cedar Springs Estates I through IV are now owned by limited liability corporations, known as Cedar Springs Estates, LLC, Cedar Springs Estates (Phase II), LLC, Cedar Springs Estates (Phase III), LLC, and Cedar Springs Estates (Phase IV), LLC, respectively. (1)
6. Defendant Richard D. Naccarato, an individual, is the president and registered agent of Cedar Builders, Inc., as well as a principal of the company. At all relevant times, Mr. Naccarato has had an ownership interest in the subject properties as a member of a partnership or limited liability corporation.
7. Defendant Cedar Chateau Partnership, a former Washington partnership, owned Cedar Chateau Estates A at the time of its development and construction. The apartment complex is now owned by Cedar Chateau Estates, LLC. (2)
8. Defendant Cedar Chateau Estates B Partnership, a former Washington partnership, owned Cedar Chateau Estates B at the time of its development and construction. The apartment complex is now owned by Cedar Chateau Estates B, LLC. (3)
9. Cedar Canyon Villas, LLC, is a limited liability corporation organized under the laws of the State of Washington with a principal place of business in Spokane, Washington. The corporation has been an owner of the subject property known as Cedar Canyon Villas in Spokane from the time of the development and construction of the property to the present.
10. Defendant Glen A. Cloninger & Associates, PS, an architectural firm which is licensed to do business in the State of Washington and whose principal place of business is Spokane, Washington, was the architectural firm of record that prepared the architectural design plans for the subject properties.
B. Relevant Requirements of the Fair Housing Act and Americans with Disabilities Act
11. The Fair Housing Act provides that all ground-floor units, in non-elevator buildings with four or more units designed and constructed for first occupancy after March 13, 1991, are "covered units" and must include certain basic features of accessible and adaptable design to make such units usable by a person who is or who becomes disabled. 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(B). The features of accessible and adaptable design required by the Act include: (a) public and common use areas that are readily accessible to and usable by persons with disabilities; (b) doors for passage into and within all premises that are sufficiently wide to allow passage by persons using wheelchairs; (c) an accessible route into and through the dwelling; (d) light switches, electrical outlets, thermostats, and environmental controls in accessible locations; (e) reinforcements in bathroom walls to allow later installation of grab bars; and (f) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C).
12. The ground-floor apartments at the subject properties are "covered multifamily dwellings" within the meaning of the Act, 42 U.S.C. § 3604(f)(7)(B). As such, those units and the public and common use areas at the properties must comply with the design and construction requirements of 42 U.S.C. § 3604(f)(3)(C). In addition, the leasing offices of the subject properties are "place[s] of public accommodation" within the meaning of Section 301(7)(E) of the ADA, 42 U.S.C. § 12181(7)(E) and are required to be readily accessible to and usable by individuals with disabilities, see 42 U.S.C. § 12183(a)(1), and the implementing regulations issued by the Department of Justice, 28 C.F.R. Part 36, including the Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A.
13. The defendants deny that they intentionally violated the Fair Housing Act or the ADA, or that they committed discrimination, and contend that they acted in good faith at all times. The defendants have entered into this Consent Decree for settlement purposes only and neither the entry of the Decree, its terms, nor any action taken under it should be construed as an admission by the defendants of any fault or wrongdoing, or as an admission of the validity of any claims made in any lawsuit.
C. Consent of the Parties to Entry of this Order
14. The parties agree that this Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. §§ 1331 and 1345, 42 U.S.C. § 3614(a) and 42 U.S.C. § 12188(b)(1)(B). The parties have negotiated a settlement such that the controversy will be resolved without further proceedings and without an evidentiary hearing. Accordingly, the parties have jointly consented to the entry of this Consent Decree as indicated by the signatures appearing below.
Therefore, it is hereby ORDERED, ADJUDGED and DECREED:
II. GENERAL INJUNCTION
15. Defendants, their officers, employees, agents, successors and assigns and all other persons in active concert or participation with any of them are enjoined from discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 U.S.C. § 3604(f)(1)-(3).
16. The Cedar Defendants are hereby enjoined from discriminating on the basis of disability as prohibited by Title III of the ADA, 42 U.S.C. § 12183(a)(1).
III. NON-DISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION
17. All future covered multifamily housing designed or constructed by the defendants after the date of this Consent Decree shall include an accessible route to the primary entrances of such dwellings.
18. During the term of this Consent Decree, the Cedar Defendants shall maintain and provide to the United States the following information and statements regarding any covered, multifamily dwellings intended to be purchased, developed, built, designed, and/or engineered in whole or in part, by them or by any entities in which they have a position of control as an officer, director, member, or manager, or have a twenty-five percent (25%) or larger ownership share. To satisfy this reporting obligation, the Cedar Defendants shall provide the following information to the United States thirty (30) days after entry of this Decree, one year after entry of this Decree, and then annually for the remainder of the term of this Decree, with respect to any covered multifamily dwelling project:
(a) the name and address of the multifamily dwelling projects;
(b) a description of the project and the individual units;
(c) the name, address and telephone number of any site engineer(s) and/or civil engineer(s) involved with the project;
(d) a statement from all site engineers and/or civil engineers involved with the project acknowledging the requirements of Section 804(f)(3)(C) of the Fair Housing Act and verifying that they have reviewed the relevant engineering documents for the project and that the design specifications in those documents fully comply with the requirements of the Fair Housing Act and HUD Guidelines, 56 Fed. Reg. 9472-9515 (March 6, 1991) (hereinafter, "Guidelines"), and, where applicable, the ADA;
(e) the name, address and telephone number of the architect(s) involved with the project; and
(f) a statement from all architects involved with the project acknowledging the requirements of Secton 804(f)(3)(C) of the Fair Housing Act and verifying that their architectural plans for the project fully comply with the requirements of the Fair Housing Act and Guidelines and, where applicable, the ADA.
(g) if the engineering documents or architectural plans are revised, and the revisions could have an impact on the accessibility of the dwellings or complex, defendants shall obtain and maintain, and provide to the United States upon request, a statement from the site engineer(s) or architect(s), as applicable, who are responsible for such revisions, that all specifications in the revised engineering documents or architectural plans, as pertinent, comply with the requirements of the Fair Housing Act and Guidelines and, where applicable, the ADA.
19. For the term of this Decree, if Defendant Cloninger prepares any architectural or site plans, drawings, or blueprints for covered multifamily housing, the firm and/or its members, employees and agents shall include on such plans, drawings or blueprints a statement that they comply with the Fair Housing Act and, where applicable, the ADA. During the term of this Decree, Defendant Cloninger shall, on request, provide to the United States a list of all such multifamily housing projects it has designed or is designing.
20. For all covered multifamily housing designed, planned and permitted during the term of this Decree, the Cedar Defendants agree to construct ten percent (10%) of all dwelling units in compliance with the requirements for "Type A" dwelling units as currently defined at Ch. 51-50-005, WAC (2004), incorporating by reference Ch. 11 of the International Building Code (2003). The "Type A" dwelling units constructed at each property under this paragraph shall conform to the requirements for Type A units contained in the version of the Washington State Building Code in effect at the time of the last building permit. This shall include, but not be limited to, any properties listed in Attachment H that are currently under construction.
IV. MODIFICATIONS OF EXISTING PROPERTIES
A. Retrofits of Subject Properties (1) Public and Common Use Areas
21. The Cedar Defendants shall complete the modifications to the public and common use areas of the subject properties as specified in certain site plans separately agreed to by the parties and incorporated herein by reference, in addition to Part I of Appendices A(1) through (10), and pursuant to the construction schedule set forth in Appendix I. Within thirty (30) days of the entry of this Decree, the Cedar Defendants shall distribute to each current tenant at the subject properties, and make available to each qualified prospective tenant with a mobility impairment, a notice substantially equivalent to Appendix B informing him or her of the retrofits to the public and common use areas required by, or available pursuant to, this Decree.
22. Upon the request of a tenant, or qualified prospective tenant, with a mobility impairment residing or seeking to reside in a covered dwelling unit at one of the subject properties, the Cedar Defendants will provide to the tenant a reserved, van-accessible parking space at a reasonable and convenient location at no additional cost to the tenant. The Cedar Defendants will provide the van-accessible parking space as promptly as is practical, and, in any event, no later than fifteen (15) days of receipt of such request.
23. Upon the request of a tenant, or qualified prospective tenant, with a mobility impairment residing or seeking to reside in a covered dwelling unit at one of the subject properties, Cedar Defendants will, upon request, add or restripe existing parking spaces to create an accessible carport space that serves the building where the tenant resides or seeks to reside, provided the tenant is otherwise entitled to a carport or garage space. Such carport will be offered upon the same terms and conditions available to other tenants.
(2) Dwelling Units
24. The Cedar Defendants shall complete the retrofits of the interiors of the covered units at the subject properties as set forth in Part II of Appendices A (1) through (10) of the Decree and pursuant to the construction schedule set out in Appendix I. The Cedar Defendants shall pay all expenses associated with these modifications and shall attempt, in good faith, to minimize any inconvenience to the tenants of the subject properties. The Cedar Defendants may not charge any additional rent, deposit or other fee for retrofits scheduled or completed in the units. The Cedar Defendants shall make such retrofits according to the terms set forth in paragraphs 25 through 30 below.
25. Within thirty (30) days of the entry of this Decree, the Cedar Defendants shall distribute to each tenant who resides in a covered ground-floor unit at the subject properties a notice, approved by the United States and consistent with Appendix C, informing him or her of the retrofits set forth in Part II of Appendix A(1) through (10) of this Decree. The notice shall inform ground-floor unit tenants of: (1) the required retrofits; (2) the retrofits that will be provided on request to ground-floor unit tenants with disabilities (or, who are regularly visited by individuals with disabilities); and (3) the schedule for completion of the retrofits. The notice shall also inform the tenants that the retrofits will be completed at no cost to them and, that to the extent feasible, their preferences and convenience will be taken into account in scheduling the retrofits, whether required or requested. In addition, the notice shall advise tenants of the existence of "model" units and a "Virtual Tour" video (described in paragraph 30, below), both of which display all required and optional accessibility features available for their inspection or review. Finally, the notice shall include a statement that, in the event installation of any retrofit(s) requires a unit to be vacated for more than twenty-four (24) hours, Cedar Defendants will arrange for appropriate lodging at no expense to the tenant, or will pay the tenant the applicable government per diem for food and lodging so that they can obtain alternative lodging, as provided in paragraph 27 of this Decree. The Cedar Defendants shall certify to the United States in writing that the notices have been distributed, and the manner in which they were distributed, within ten (10) days of such distribution. The Cedar Defendants shall complete requested retrofits as promptly as possible, but in any event no later than thirty (30) days after the receipt of a request, unless unforeseen circumstances prevent them from doing so. In such case, Cedar Defendants shall notify the United States of the circumstances involved and the parties will set an alternative completion date.
26. Notwithstanding the provisions of the preceding paragraph, all covered ground-floor units that are to be automatically modified under this Decree must be retrofitted to comply with Part II of Appendix A (1) through (10) no later than the period set forth in the construction schedule at Appendix I, even if there has been no vacancy in that unit since the date of entry of this Decree.
27. In the event a ground-floor tenant residing in a unit scheduled to undergo either a required or requested retrofit modification under this Decree incurs undue inconvenience or hardship (defined as a dislocation from the unit for more than 24 hours consecutively), the Cedar Defendants will make arrangements for reasonable, alternative lodging at no expense to the tenant during the period of dislocation, or, at the option of the Cedar Defendants, pay such tenant the applicable government per diem rate for food and lodging for the local area for each day of undue convenience or hardship. If the Cedar Defendants elect the payment option, such payment shall be made prior to the commencement of any retrofit work on the tenant's unit, so that the tenant can use the money to obtain alternative living accommodations during the period of dislocation.
28. For Cedar Chateau Estates A and B, Cedar Forest Estates and Cedar Springs Estates I, Phase A, ("Group I Properties") if a prospective tenant with a mobility impairment, or who intends to be visited regularly by a person with a mobility impairment at the complex, requests an accessible Type A unit and one is not available at the Group I Properties, the Cedar Defendants shall offer the prospective tenant an accessible ground-floor unit at any of its other subject properties on the same terms and conditions as those of comparable units at the Group I property where he or she first made inquiry. Prospective tenants at the Group I Properties shall be offered written material informing them of this option. Such written material shall be submitted to the United States for review and approval within ten (10) days of entry of this Decree.
29. During the term of this Decree, the Cedar Defendants will provide prospective tenants with written material, approved by the United States and consistent with Appendix C, explaining the retrofits that will be made to the covered dwellings, automatically and upon request, and, informing them of the existence of model units and a "Virtual Tour" video, both of which display the accessibility features available at Cedar Springs Estates I, Phase B, Cedar Springs Estates II, III and IV, Cedar Creek Village I and II, and Cedar Canyon Villas ("Group II Properties").
30. The Cedar Defendants shall provide at least one ground-floor "model" unit at each of the Group II Properties that displays all available accessibility features and potential retrofits as provided in Part II of Appendices (A)(2) through (6) and (10). (4) The Cedar Defendants shall utilize a "Razz" unit type as a model at each property at which a model is required under this paragraph. All such model units will be made available for display to the public unless rented as provided in this paragraph. Current and prospective tenants must be offered an opportunity to view the model unit. The Cedar Defendants may rent the model unit to qualified prospective tenants who view the unit provided: a) they inform such tenant that he or she may rent a different ground-floor unit that would be retrofitted to include applicable accessibility features on display in the model unit; and b) that if the model unit becomes vacant after first having been rented, the unit will again be made available for display to the public. All model units shall be completed as soon as reasonably possible, but, in any event, no later than six (6) months from the date of entry of this Consent Decree, unless ground-floor units are not available for conversion to a model during that period, in which case the model shall be completed within two (2) months of vacancy. The Cedar Defendants shall pay all expenses associated with the creation of the model units and shall attempt in good faith to minimize any inconvenience to the residents of the properties. In addition to the creation of model units, the Cedar Defendants shall generate a "Virtual Tour" of a model unit that displays clearly all available accessibility features and potential retrofits as provided in Part II of Appendices (A)(2) through (6) and (10). The "Virtual Tour" will be made available to prospective and existing tenants for viewing at the rental offices of each of the subject properties. The "Virtual Tour" shall be completed within six (6) months of entry of this Decree. After the expiration of this Consent Decree, dwelling unit interiors at the properties shall not be considered to be compliant with the Fair Housing Act's accessible design requirements unless these accessible model units and the retrofits displayed in such units (and the "Virtual Tour") continue to be provided as described in this Decree.
(3) Inspection of Retrofits
31. The Cedar Defendants shall enter into a contract with a neutral inspector approved by the United States (hereinafter "Inspector") to conduct on-site inspections of the retrofits that have been performed under this Decree to determine if the retrofits have been completed in accordance with the agreed site plans and the specifications in Appendices A(1) through (10). Such Inspector shall have expertise in the design and construction requirements of the Fair Housing Act and the ADA and its implementing regulations.
32. The inspections shall take place at intervals not more than six (6) months apart as the retrofits are completed in accordance with the construction schedule set forth in Appendix I. The Cedar Defendants shall give the United States at lease three (3) weeks notice of the inspections and shall give the United States an opportunity to have its representative present for the inspections.
33. The Inspector shall set out the results of each inspection, including deficits, if any, in writing, and shall send that report by mail and by fax to counsel for the United States (5) and the Cedar Defendants. If the inspection indicates that not all of the required retrofits have been made as specified in Parts I and II of Appendices A(1) through (10) within the time frame indicated in the construction schedule, the Cedar Defendants shall correct any deficiencies within a reasonable period as determined by the Inspector, subject to the approval of the United States, which shall not be unreasonably withheld. Cedar Defendants shall pay for another inspection by the same Inspector to certify that the deficiencies have been corrected. This process shall continue until the Inspector certifies that all of the necessary modifications have been made.
34. The Cedar Defendants shall pay all fees and costs associated with these inspections, and such payments shall be made without regard to the Inspector's findings. Upon reasonable notice to the Cedar Defendants, representatives of the United States shall be permitted to inspect the modifications to ensure compliance with this Consent Decree.
B. Retrofits of Other Covered Properties Owned by Cedar Defendants
35. With respect to seven existing multifamily housing properties, other than the subject properties, that are owned by any of the Cedar Defendants, or affiliated companies, and covered by the Fair Housing Act and/or the ADA as set forth in Appendix H, the United States and the relevant Cedar Defendant(s) agree as follows:
a) Within thirty (30) days of the date of entry of this Consent Order, the Cedar Defendants shall provide the United States with on-site surveys at each property listed in Appendix H. The surveys shall have been conducted by the Inspector referenced in paragraph 31, above, to determine each property's compliance with the Fair Housing Act and the ADA. The surveys shall set out the results of each inspection, and should describe any modifications deemed necessary for compliance with the accessibility provisions of the Fair Housing Act and the ADA.
b) Within thirty (30) days of submitting a survey to the United States, the Cedar Defendants shall submit to the United States a marked-up version that indicates, for each item noted in the Inspector's survey, what specific modification(s) they propose to make and the timeframe in which they propose to complete the work. In determining what modifications will be made, the United States and Cedar Defendants shall be guided by Parts I and II of Appendix A(1) through (10), which set forth the modifications negotiated and agreed upon by the parties regarding the subject properties identified in paragraphs 2 and 3, above.
c) Within sixty (60) days of receipt of the marked-up version of each survey, the United States shall provide Cedar Defendants with any comments or objections to their modification proposals in writing. If no written comments or objections are provided by the United States within that period, the Cedar Defendants shall proceed with the modifications they proposed in the revised version. Should the United States provide comments or objections, the parties shall endeavor to resolve them expeditiosly and in good faith, after which the Cedar Defendants shall promptly submit a revised marked-up version, to which the United States shall have ten (10) days after receipt within which to provide written objections; if there are no objections, the Cedar Defendants shall proceed with the modifications they proposed in the revised version. If, after engaging in expeditious and good faith negotiations, the parties are unable to resolve any differences about necessary modifications, the United States may raise the matter with the Court for resolution.
d) Upon completion of the agreed upon modifications for each property listed in Appendix H, the Inspector shall re-inspect the property and certify in writing that the agreed upon modifications have been properly made. The post-modification inspection shall take place within thirty (30) days of the completion of retrofits to units and common use areas on any given property, or as soon thereafter as practicable. The Cedar Defendants shall give the United States at least three (3) week's notice of the inspection of each property, and shall give the United States an opportunity to have a representative present for the inspection of each property. Upon reasonable notice to the Cedar Defendants, representatives of the United States shall be permitted to inspect the modifications to ensure compliance with this Decree. Copies of the Inspector's certifications shall be provided to the United States within ten (10) days of receipt by the Cedar Defendants. Should the Inspector withhold certification on any items, the Cedar Defendants shall notify the United States in writing and promptly make the appropriate modification(s); afterward, the Inspector shall re-inspect the property to certify that the items have been addressed, and such certification shall be provided to the United States within ten (10) days of receipt by the Cedar Defendants.
e) The Cedar Defendants shall pay all costs associated with the surveys, inspections, and modifications/retrofits to each property identified in Appendix H, without prejudice to their ability to seek contribution or indemnification from other sources for such modifications/retrofits.
f) In the event a resident of a unit scheduled to undergo modifications incurs undue inconvenience or hardship (defined as a required dislocation from the unit for more than 24 hours, consecutively), the Cedar Defendants shall make arrangements for reasonable, alternative lodging at no cost to the resident during the period of dislocation, or, at the Cedar Defendant's option, pay such resident the applicable government per diem rate for food and lodging for the local area for each day of undue inconvenience or hardship. If the Cedar Defendants elect the payment option, such payment shall be made prior to the commencement of any retrofit work on the resident's unit, so that the resident can use the money to obtain alternate living accommodations while dislocated.
g) For those properties identified in Appendix H in which Cedar Defendants have an ownership or management interest at the time modifications are made, they may not charge any additional rent, deposit or other fee for the units in which retrofits are implemented because of anticipated or completed retrofits.
C. Sale or Transfer of an Ownership Interest in Covered Properties
36. The sale or transfer of ownership, in whole or in part, of any of the subject properties or the properties listed in Appendix H, shall not affect the Cedar Defendants' continuing obligations during the period of the Consent Decree to retrofit the properties as specified in this Consent Decree. Should the Cedar Defendants, or any of the entities referred to in paragraphs 5, 7 and 8 that currently own the subject properties, decide to sell or transfer any ownership interest, in whole or in part, of one or more of the subject properties prior to the completion of the required retrofits specified in Parts I and II of Appendices A(1) through (10) and in Section IV of the Decree, the Cedar Defendants shall, at least thirty (30) days prior to completion of the sale or transfer: (a) provide to each prospective buyer written notice that the subject property is subject to this Consent Decree, including specifically the Cedar Defendants' obligations to complete required retrofit work and to allow inspections, along with a copy of this Consent Decree; and (b) provide to the United States, by first class mail, written notice of its intent to sell or transfer ownership, along with a copy of the notice sent to each buyer, and each buyer's name, address and telephone number.
V. EDUCATIONAL PROGRAM
A. Acknowledgment of Receipt of Consent Decree
37. Within thirty (30) days of the entry of this Decree, defendants shall provide a copy of this Consent Decree to all their employees and agents with supervisory responsibility for the design and/or construction of covered multifamily dwellings, and every employee or agent responsible for showing or renting a dwelling, and secure and deliver to counsel for the United States a signed statement from each such individual certifying that he or she has received and read the Decree, and has had an opportunity to have his or her questions about the Decree answered. This statement shall be substantially in the form of Appendix D.
38. During the term of this Decree, within thirty (30) days after the date he or she enters into an employment or agency relationship with any defendant, each new agent or employee with supervisory responsibility for the design and/or construction of covered multifamily dwellings and every employee or agent responsible for showing or renting a dwelling, shall be given a copy of this Decree and required to sign the statement acknowledging its receipt and certifying that his or her questions about the Decree have been answered.
B. Employee Education
39. For the term of this Decree, the defendants shall ensure that they and their employees and agents who have supervisory authority over the design and/or construction of covered multifamily dwellings, have a copy of, are familiar with, and personally review the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472-9515 (March 6, 1991) and the United States Department of Housing and Urban Development's (HUD's) Fair Housing Act Design Manual to Assist Builders in Meeting the Accessibility Requirements of the Fair Housing Act (August 1996, Rev. April 1998).
40. Within sixty (60) days of the date of entry of this Consent Decree, the defendants shall provide all employees and agents of defendants whose duties in whole or in part include supervisory responsibility for the design and/or construction of covered multifamily dwellings, in-person training on the design and construction requirements of the Fair Housing Act and pertinent provisions of the ADA. The training shall be conducted by an independent, qualified third party, approved by the United States, and any expenses associated with this training shall be borne by the defendants. Within thirty (30) days after the training, the defendants shall provide to the United States copies of the training outlines, any materials distributed by the trainers, and certifications executed by all covered employees and agents confirming their attendance in a form substantially similar to Appendix G.
C. Public Education
41. Within five (5) days of entry of this Consent Decree, the Cedar Defendants shall deposit into an interest bearing escrow account the sum of fifteen thousand dollars ($15,000) for the purpose of establishing an educational program offered to builders and design professionals in the Spokane community regarding the accessibility requirements of the Fair Housing Act and the ADA.
42. Within ninety (90) days of entry of the Decree, the Cedar Defendants shall plan and schedule at least two educational seminars in the Spokane area, funded through the education program account referenced in paragraph 41, to be conducted by qualified professionals proposed by the Cedar Defendants and approved by the United States. (6)
VI. PUBLIC NOTICE OF NON-DISCRIMINATION POLICY
43. During the term of this Decree, the Cedar Defendants shall post and prominently display the federal Fair Housing Poster, as described in 24 C.F.R. 110.15 and 110.25, in the leasing offices of the subject properties and in any other sales or rental offices of all dwellings owned or operated by them, if any, and in any other place in which persons may inquire about renting dwellings from them.
44. For the duration of this Consent Decree, in all future advertising in newspapers where the advertisement is more than two square inches, on pamphlets, brochures and other promotional literature, and on any internet website regarding the subject and other existing properties, or any new covered complexes that the Cedar Defendants may design, develop or construct, the Cedar Defendants shall place, in a conspicuous location, a statement that the dwelling units include features for persons with disabilities required by the federal Fair Housing Act.
VII. ADDITIONAL MONITORING REQUIREMENTS
45. For the duration of this Decree, the defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any written complaint against them, their employees or agents, involving, or potentially involving, discrimination regarding housing on the basis of disability under the Fair Housing Act or, where applicable, the ADA. The defendants shall also promptly provide the United States all non-privileged information it may request concerning any such complaint. Within fifteen (15) days of the resolution of any such complaint, the defendants shall advise counsel for the United States that a resolution has been reached.
46. For the duration of this Decree, the defendants are required to preserve all records related to this Decree regarding the subject properties, the properties listed in Appendix H, and all future covered multifamily dwellings to be designed, constructed, owned, operated or acquired by them independently or jointly during the period of the Decree. Upon reasonable notice to the defendants, representatives of the United States shall be permitted to inspect and copy any of the defendants' non-privileged records or inspect any covered dwelling or any covered public and common use areas under the defendants' control at reasonable times so as to determine compliance with the Consent Decree.
47. Within 180 days after the entry of this Decree, the defendants shall submit an initial report containing the signed statement certifications of attendance for defendants, their officers, and supervisory design and/or construction personnel, who have completed the education program specified in Section V(B) of this Consent Decree. Thereafter, during the term of this Decree, the defendants shall, one year after its entry and each year thereafter, submit to the United States a report containing the signed statements of new employees and agents involved in the design and/or construction of multifamily dwellings certifying that, in accordance with Section V(A), they have received and read the Decree and had an opportunity to have questions about the Decree answered.
VIII. DAMAGES FOR AGGRIEVED PERSONS
48. Within five (5) days of the entry of this Decree, the defendants shall pay the sum of twenty-five thousand dollars ($25,000) to Jason Sdao, which sum shall be paid in a manner consistent with the separate agreement between Mr. Sdao and the defendants. Within the same five-day period, the defendants shall pay the sum of twenty-five thousand dollars ($25,000) to the Northwest Fair Housing Alliance (NWFHA). The defendants shall promptly provide the United States with appropriate documentation that these payments have been made.
49. Within five (5) days of the entry of this Decree, the defendants shall deposit into an interest bearing escrow account the sum of four hundred fifty thousand dollars ($450,000) for the purpose of paying damages to any additional aggrieved persons who may have been harmed as a result of the defendants' failure to design and construct the subject properties in compliance with the FHA and the ADA.
50. Within fifteen (15) days of the entry of this Decree, the Cedar Defendants shall publish the Notice to Potential Victims of Housing Discrimination ("Notice"), attached hereto as Appendix E, informing the public of this settlement and of the damages fund described in paragraph 49, above. The Notice shall be no smaller than three columns by six inches and shall be published on five (5) occasions in the Spokesman Review. The publication dates shall be separated from one another by at least five (5) days, and at least two (2) of the publications shall be in a Sunday edition of the newspaper. Within ten (10) days of the final publication date, the Cedar Defendants shall provide copies of the newspapers containing the Notice to counsel for the United States. Within fifteen (15) days of the entry of this Decree, the Cedar Defendants also shall send a copy of the Notice to the following organizations: (1) the Northwest Fair Housing Alliance (NWFHA); and (2) the Coalition for Responsible Disabled (CORD).
51. Within thirty (30) days of the entry of this Decree, the Cedar Defendants shall send by first-class mail, postage prepaid, a copy of the Notice to each existing tenant of the ground-floor apartments at the subject properties and to the last known address of any past tenant of a ground floor unit who resided in said unit at any time after January 1, 1999. Within forty-five (45) days of entry of this Decree, the Cedar Defendants shall provide to counsel for the United States proof that the Notice has been sent. The Cedar Defendants shall also make available for inspection and copying any documents the United States believes may reasonably assist in the identification of aggrieved persons. Nothing in this section shall preclude the United States from making its own efforts to locate and provide notice to potential aggrieved persons.
52. Potential aggrieved persons shall be informed that they have 150 days from the date of entry of this Decree to contact the United States in response to the Notice. The United States shall investigate the claims of potential aggrieved persons and, within 180 days from the entry of this Decree, shall make a preliminary determination as to which persons are aggrieved and an appropriate amount of damages to be paid to each such person from the damages fund. The United States will inform the Cedar Defendants in writing of its preliminary determinations, together with a copy of a sworn declaration from each potential aggrieved person setting forth the factual basis of the claim. The Cedar Defendants shall have fourteen (14) days to review the declaration and provide the United States with any documents or information they believe may refute the claim.
53. After receiving the Cedar Defendants' comments, the United States shall submit its final recommendations to the Cedar Defendants and to the Court for its approval, together with a copy of the declarations and any additional information submitted by the Cedar Defendants. When the Court issues an order approving or changing the United States' proposed distribution of funds for aggrieved persons, the Cedar Defendants shall, within ten (10) days of the Court's order, deliver to the United States checks payable to the aggrieved persons in the amounts approved by the Court. In no event shall the aggregate of all such checks exceed the sum of the damages fund, including accrued interest, provided for in paragraph 49 of this Decree. No aggrieved person shall be paid until he or she has first executed and delivered to counsel for the United States a release consistent with the release form set forth in Appendix F.
54. If, after all payments to aggrieved persons have been made, a balance remains in the damages fund, the Cedar Defendants shall make a proposal to the United Stats for distribution of any balance to an organization dedicated to making housing available to persons with disabilities in the Spokane, Washington community. If the proposal is acceptable, the United States shall submit the proposal to the Court and request that the distribution be included in the Court's order of distribution. The Cedar Defendants shall, within ten (10) days of the Court's order, pay as directed by the Court.
IX. CIVIL PENALTY
55. Within ten (10) days of the date of entry of this Order, the defendants shall jointly pay to the United States a civil penalty of twenty-five thousand dollars ($25,000) to vindicate the public interest, pursuant to 42 U.S.C. §3614(d)(1)(C). This sum shall be paid by submitting to counsel for the United States a check made payable to the "United States of America."
X. DURATION OF DECREE AND TERMINATION OF LEGAL ACTION
56. This Consent Decree shall remain in effect for three (3) years after the date of its entry, except with respect to the provisions in Section II of the Decree (General Injunction), which shall remain in effect for five (5) years, provided all retrofits have been certified as compliant with Section IV of the Decree and the retrofit plans set forth in Appendices A and I, and the damages fund has been distributed in accordance with the provisions of Section VIII of the Decree. In the event the retrofits have not been certified as compliant with the retrofit plans, and/or the damages fund has not been distributed as required by Section VIII, all the provisions of the Decree will remain in effect for five (5) years or until such time as the retrofits have been certified and the damages fund has been distributed as required by this Decree.
57. With respect to all defendants except Richard Naccarato, the Court shall, for the duration of this Consent Decree, retain jurisdiction, including for distribution of the settlement funds, to enforce the terms of the Decree, after which time the case shall be dismissed with prejudice. With respect to Mr. Naccarato, all claims against him individually shall be dismissed with prejudice within sixty (60) days after the entry of the Decree, provided that the Cedar Defendants have complied with all provisions of this Decree that, by their terms, must be initiated and/or completed within the first 60 days of entry. In such case, the parties shall submit an appropriate stipulation of dismissal. If there is a dispute as to whether dismissal is appropriate, the parties shall submit the issue to the Court pursuant to paragraph 58 of this Decree. Plaintiff United States may move the Court to extend the duration of the Decree in the interests of justice.
58. The parties shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Decree prior to bringing such matters to the Court for resolution. However, in the event of a failure by a defendant to perform in a timely manner any act required by this Decree or otherwise to act in conformance with any provision thereof, any party may move this Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance of such act or deeming such act to have been performed, and an award of any damages, costs, and reasonable attorneys' fees which may have been occasioned by the violation or failure to perform.
XI. TIME FOR PERFORMANCE
59. Any time limits for performance imposed by this Consent Decree may be extended by the mutual agreement, in writing, of Plaintiff United States and the relevant defendant.
IT IS SO ORDERED:
This ______ day of _________________, 2005.
________________________________
United States District Judge
Agreed to by the parties as indicated by the signatures below.
| FOR PLAINTIFF UNITED STATES: Bradley J. Schlozman /s/ Nancy F. Langworthy Date: September 13, 2005 /s/ Pamela J. DeRusha Date: September 13, 2005 | FOR DEFENDANTS CEDAR BUILDERS, ______________________________ Date:_________________________ FOR DEFENDANT GLEN A. CLONINGER & ASSOCIATES: ____________________________ Date:________________________ |
1. The Cedar Defendants represent that these four limited liability corporations, which are owned or controlled, in whole or in part, by one or more of the Cedar Defendants, consent to the retrofits mandated by this Decree.
2. The Cedar Defendants represent that Cedar Chateau Estates, LLC, which is owned or controlled, in whole or in part, by one or more of the Cedar Defendants, consents to the retrofits mandated by this Decree.
3. The Cedar Defendants represent that Cedar Chateau Estates B, LLC, which is owned or controlled, in whole or in part, by one or more of the Cedar Defendants, consents to the retrofits mandated by this Decree.
4. The Cedar Defendants may construct one model accessible unit required under paragraph 30 for Cedar Creek Village I and Cedar Creek Village II to share, as both properties are operated out of a common rental office and have the same on-site managers.
5. For purposes of this Decree, all submissions to the United States or its counsel should be submitted to: Chief, Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice, 950 Pennsylvania Avenue, N.W. - G Street, Washington, D.C. 20530, Attn: DJ# 175-81-22 , or as otherwise directed by the United States.
6. The Cedar Defendants may, but are not required to, plan these seminars in conjunction with the County of Spokane's Division of Building and Code Enforcement.
Document Filed: September 14, 2005 > >