UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
UNITED STATES OF AMERICA,
ALLAN J. NOLD and AURORA NOLD,
ROCK SPRINGS VISTA
DEVELOPMENT CORP., INC. and
J.A. BLACK CONSTRUCTION
ROCK SPRINGS VISTA
DEVELOPMENT CORP., INC. and
J.A. BLACK CONSTRUCTION
DELUNA, INC.; THE KEITH
COMPANY; and VTN, NEVADA,
THE KEITH COMPANIES,
ROCK SPRINGS VISTA
DEVELOPMENT CORP., INC. and
J.A. BLACK CONSTRUCTION
Third-Party Defendants. )
The United States and Rock Springs Vista Development Corp, Inc. and J.A. Black Construction Company, Inc. (defendants), have agreed to this Consent Decree. On December 15, 1997, the United States filed its Complaint alleging violations of Section 804 (f) (3) (C) of the Fair Housing Act, 42 U.S.C. § 3604 (f) (3) (C), as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3619 (the Act). Specifically, the United States Complaint alleges that the defendants have engaged in a pattern or practice of discrimination by failing to design and construct Rock Springs Vista #7, (RSV #7), Rock Springs Vista #8 (RSV #8), Rock Springs Vista #9, (RSV #9), Rock Springs Vista Mesquite #1 (Mes #1) and Rock Springs Vista Mesquite #2 (Mes #2) (collectively referred to as the RSV properties or the five with the features of accessible and adaptable design set forth in 42 U.S.C. § 3604(f)(3)(C).
All of the RSV properties have been built and all of the units at the RSV properties have been sold. RSV #7 consists of sixty-one buildings, each with four dwelling units, 122 of which are located on the ground-floor. RSV #8 is comprised of thirty-three buildings, each with four dwelling units, sixty-six of which are located on the ground-floor. RSV #9 is comprised of fourteen buildings, each with four dwelling units, twenty-eight of which are located on the ground-floor. Mes #1 is comprised of forty-four buildings, each with four dwelling units, eighty-eight of which are located on the ground-floor. Mes #2 is comprised of eighty-six buildings, each with four units, 172 of which are located on the ground-floor. All of the dwelling units at RSV #7, RSV #8, RSV #9, Mes #1, and Mes #2 were designed and constructed for first occupancy after March 13, 1991.
The ground-floor condominium units at the RSV properties are "covered multi-family dwellings" within the meaning of the Act, 42 U.S.C. § 3604(f)(7)(A). In general, the Act requires that, for residential buildings with four or more units, all ground-floor units in non-elevator buildings include certain basic accessibility and adaptability design features intended to make housing usable or adaptable by a person who is or who becomes disabled. Accordingly, 476 of the 952 units at the RSV properties are potentially "covered" units under the Act.
The design requirements under the Act include: (a) public use and common use areas that are readily accessible to and usable by persons with disabilities; (b) doors designed to allow passage into and within all premises that are sufficiently wide to allow passage by persons in 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.
As originally designed, the United States alleges that none of the 476 "covered" units at the five RSV properties complied with the requirements of 42 U.S.C. § 3604(f)(3)(C). Three hundred seventy six (376) of the 476 "covered," completed ground-floor units at the five properties were constructed pursuant to the original designs. The United States alleges that none of those units, as designed and constructed, comply with the requirements of 42 U.S.C. § 3604(f)(3)(C). Without admitting the truth of any of the above allegations, defendants desire to enter into this Consent Decree to resolve this matter.
Due to site impracticability, as described in the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991) (the Guidelines), the parties agree that twenty (20) of the covered units at Mes #1 and ten (10) units at Mes #2 are exempt from the accessibility requirements of 42 U.S.C. § 3604(f)(3)(C), for a total of thirty (30) units.
The United States alleges in its Complaint that, as originally designed and constructed: (1) many of the units do not have an accessible entrance on an accessible route; (2) the public use and common use portions of the dwellings are not readily accessible to and usable by persons with disabilities; (3) none of the doors in the individual condominium units are sufficiently wide to allow passage by persons in wheelchairs; (4) an accessible route does not exist into and through the units; (5) none of the thermostats and electrical outlets in the units are in accessible locations; (6) no reinforcements are provided in bathroom walls in the units to allow later installation of grab bars; and (7) bathrooms in all of the units are not usable such that an individual in a wheelchair can maneuver about the space.
The parties agree that this Court has jurisdiction over the subject matter of this case. Defendants do not admit that they failed to design and construct the condominium units at the RSV properties in compliance with the Act. The parties agree that the controversy should be resolved without further proceedings and without an evidentiary hearing. Therefore, the parties have consented to the entry of this Consent Decree as indicated by the signatures appearing below.
It is hereby ORDERED, ADJUDGED and DECREED:
- GENERAL INJUNCTION
Defendants, their officers, employees, agents, successors and assigns and all other persons in active concert or participation with any of them are permanently enjoined from discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(C), and as set forth in the Guidelines.
- CORRECTIVE ACTIONS
- Revision of Interior Design Plans
When the United States first contacted defendants regarding their alleged failure to design and construct the covered dwellings at the five properties, defendants had already revised their design plans for the interior of some of the units at Mes #2.(1) The revised plans are attached hereto as Appendix A. The parties agree that the 100 units constructed at Mes #2 pursuant to those revised plans substantially satisfy the requirements of the Fair Housing Act set forth at 42 U.S.C. §3604(f)(3)(c) and the Guidelines.
- Guidelines for Remaining Units
Because all of the units at the subject properties are fully constructed, there are significant, practical, structural, and cost impediments to modifying these units. To address the claims of the United States, defendants have, upon request by certain owners, retrofitted or will retrofit some or all of the interior of units belonging to those certain owners at the five properties pursuant to the plans attached as Appendix A for a total cost of $158,805.00 (ONE HUNDRED FIFTY-EIGHT THOUSAND EIGHT HUNDRED FIVE DOLLARS). Defendants have also agreed to take the actions set forth in Sections III through XII below. These actions are reasonable and practicable and will increase the number of housing units on the market with features of accessible and adaptable design.
- Retrofitting of Public Use and Common Areas
Appendix B contains retrofitting plans previously approved by the United States for the public use and common areas at RSV #9 and Mes #1. Defendants will, within ninety (90) days of the entry of this Consent Decree, provide to counsel for the United States(2) for its approval, retrofit plans covering comparable modifications to those set forth in Appendix B, for the public use and common areas at RSV #7, RSV #8, and Mes #2. Upon approval by the United States, such plans will become part of Appendix B of this Consent Decree.
As set forth by example in Appendix B, defendants have undertaken and, upon approval by the Homeowner's Associations (the Associations) at the RSV properties, defendants will continue to undertake specific corrective actions for the public use and common use areas at the five properties, including but not limited to the modification of handrails and the installation of curb cuts and tire stops, at a cost of approximately FIVE HUNDRED FORTY-FOUR THOUSAND DOLLARS ($544,000.00). Defendants will make their best efforts to complete these specific actions by November 30, 2000; however, in no case will defendants be required under this Consent Decree to take these specific actions unless approved by the Associations. Additionally, upon notification to counsel for the United States by defendants that such specific actions cannot be completed by November 30, 2000, the United States agrees to grant defendants a reasonable extension of time for performance of said retrofits. The parties agree that these modifications of the public use and common use areas at the five properties substantially satisfy the requirements of the Fair Housing Act set forth at 42 U.S.C. § 3604 (f)(3)(C) and the Guidelines.
- Revision of Interior Design Plans
- NON-DISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION
At the present time, defendants are not involved in the construction of multi-family housing nor do they have any current plans to do so. Every six (6) months, for a period of five (5) years from the date of entry of this Consent Decree, defendants shall, regarding any covered, multi-family dwellings intended to be developed or built by defendants, or any one of them, as evidenced by the completion of site plans and blueprints for the project and prior to the application for the initial building permits for the project, submit to counsel for the United States the following information: the name and address of the project and the individual units, the name of any site engineer involved with the project, and the name of the architect. Any architect involved with the project shall also submit a statement acknowledging and describing his or her knowledge of and training in the requirements of § 3604(f)(3)(C) of the Act and in the field of accessible design and certifying that he/she has reviewed such plans and that the plans include design specifications that fully comply with the requirements of the Act and the Guidelines. In the event defendants do not undertake construction of any new multi-family housing projects within five years of the date of entry of this Consent Decree, the requirements of this Paragraph shall ve satisfied by sending a letter to counsel for the United States certifying that defendants are not involved in the construction of multi-family housing.
- MONETARY FUND
- Defendants shall, within thirty (30) days of the entry of this Consent Decree, deposit in an interest bearing account designated by the United States, the total sum of TWENTY FIVE THOUSAND DOLLARS ($25,000.00) (the Fund), which shall be administered by an entity chosen by the United States and shall be maintained for a period of ten years from the date of its creation. Defendants shall pay reasonable all costs associated with administration of the Fund.
- The Fund shall be used, as detailed below, to address in part certain features of the design and construction of the public use and common areas and the dwelling units at the RSV properties in compliance with the accessibility features of the Act. The purpose of the accessibility provisions of the Fair Housing Act is to make all housing units and the public use and common areas associated therewith that are covered by the Act usable by and adaptable for persons with disabilities. The United States alleges that as a result of defendants' actions, there are 376 housing units that do not comply with the accessibility and adaptability requirements of the Act, thereby increasing the number of units in Clark County that are not usable by persons with disabilities; however, the parties agree that thirty (30) of those units are exempt from the accessibility provisions of the Act and the Guidelines. The money in the Fund is intended to address accessibility issues at the five properties, and to provide any person at the five properties who desires to make his or her dwelling unit more accessible to persons with disabilities, with assistance in adding accessibility features to their dwelling units, thereby increasing the number of units that are usable or visitable by person with disabilities.
- The United States and defendants shall in good faith agree on an entity to administer the Fund. The entity will make funds available to persons desiring to modify their units or the public use and common areas at the five properties to make them more accessible as provided in this Decree. Such entity shall determine whether the desired modification(s) fall within the scope of the Decree, and the amount to be used for such modifications(s). The entity shall determine procedures to be followed for requesting and approving requests for funds. Such procedures shall be submitted to the United States for approval within sixty (60) days of the entry of this Consent Decree. The entity shall make determinations on payments from the Fund as set forth below upon written requests on a first-come, first-serve basis.
- The money placed into the Fund, along with all interest accumulated, is to be made available, for a period of ten (10) years from the date of entry of this Consent Decree, on terms specified in this Decree, to all owners of the condominium units at the RSV properties seeking to modify their units or the public use and common areas to meet any or all of the requirements of 42 U.S.C. § 3604(f)(3)(C). Owners are eligible to receive funds under this Section provided that such action is consistent with any condominium bylaws. A qualifying person may receive up to FIVE THOUSAND DOLLARS ($5,000.00) to be used for retrofitting individual units under this subparagraph.
- If prior to expiration of the time period referred to in Paragraph C above, the Fund reaches a zero balance, defendants will replenish the Fund by depositing an additional TWENTY FIVE THOUSAND DOLLARS ($25,000.00) into the account within ten (10) days after being notified by the entity administering the Fund. Defendants will be liable for no more than ONE HUNDRED THOUSAND DOLLARS ($100,000.00) over the life of the Fund.
- If upon completion of the actions specified in subparagraphs (A) through (C) of this Section there remains a balance in the Fund, this balance will be made available to an organization for the purpose of furthering fair housing for persons with disabilities. The entity responsible for administering the Fund shall solicit proposals from appropriate organizations. The entity, with the approval of the United States, shall designate the organization to receive the funds and may require the recipient to sign an agreement regarding the use of the funds. Preference shall be given to a qualified organization in Clark County.
- RETROFIT INSPECTIONS
Defendants shall, within five (5) working days of completion of any interior retrofits performed pursuant to Sections II and IV above, notify the entity referred to in Section IV above that such retrofits have been completed. The entity shall, within ten (10) days of such notification, perform an inspection at a cost of FIFTY DOLLARS ($50.00) per unit, utilizing the checklist attached at Appendix C, to determine whether the interior retrofits have been performed within reasonable standards of the construction industry. Defendants shall pay the cost of such inspections. If, upon such inspection, the entity determines that the retrofits have not been performed within reasonable standards of the construction industry, the entity shall notify defendants regarding this determination within five (5) working days and defendants shall cure any defects within thirty (30) days of notification. All parties acknowledge that in the course of retrofitting units, defendants will be required o patch carpeting and that following retrofitting, carpeting will reflect the wear and tear which existed prior to the commencement of retrofitting.
- COMPENSATION TO AGGRIEVED PERSONS
Defendants shall pay the total sum of TWO HUNDRED EIGHTY ONE THOUSAND FIVE HUNDRED DOLLARS ($281,500.00) to those aggrieved persons previously identified by the United States, including intervenors Allan and Aurora Nold, in payment of compensatory damages pursuant to 42 U.S.C. § 3614(d)(1)(B). Defendants shall pay said money within thirty (30) days of the date of entry of this Order by sending individual checks, payable to the order of each previously identified aggrieved person(s) in an amount previously agreed upon by the parties, to counsel for the United States; except that the check for intervenors Allan and Aurora Nold shall be forwarded to their counsel. The United States shall keep said checks, with the exception of the check for Allan and Aurora Nold, in its possession until each identified aggrieved person(s) has signed a release of claims.
- EDUCATIONAL PROGRAM
At the present time, defendants are not involved in the construction of multi-family housing nor do they have any current plans to do so. Within thirty (30) days of the commencement of any new multi-family construction project during the period of this Consent Decree, defendants shall provide to all their supervisory employees, rental or sales agents, and site managers involved in the design, construction, rental, or sale of multi-family dwellings covered by the Act: (1) a copy of this Consent Decree and (2) instruction on (i) the terms of this Consent Decree, (ii) the requirements of the Act with a particular emphasis on the Act's design and construction requirements, and (iii) their responsibilities and obligations under each. The training shall be conducted by a qualified person or organization approved by the United States. Any expenses associated with this training shall be borne by defendants. Each new supervisory employee, sales or rental agent, or site manager retained by defendants during the term of this Decree must comply with the above requirements within thirty (30) days after the date he or she commences an employment, agency, or contractual relationship with defendants. Within thirty (30) days of the completion of the training, defendants shall secure and deliver to counsel for the United States a signed statement from each such employee, rental or sales agent, or site manager that he or she has received, read, and understands this Decree and has attended the fair housing program.
- NOTICE TO THE PUBLIC OF DEFENDANTS' NON-DISCRIMINATION POLICY
At the present time, defendants are not involved in the construction of multi-family housing nor do they have any current plans to do so. During the period of this Consent Decree, prior to the opening of any new sales or rental offices relating to covered multi-family housing owned or operated by and or all defendants, defendants shall post and prominently display in said offices a sign no smaller than ten (10) by fourteen (14) inches indicating that all dwellings are available for sale or rental on a nondiscriminatory basis. Defendants shall also post such a sign in the sales or rental office of any other covered multi-family housing developed or acquired by any or all of them during the effective period of this Consent Decree within ten (10) days of commencing construction. A poster that comports with 24 C.F.R. Part 110 will satisfy this requirement.
In addition, for the duration of this Consent Decree, in all future advertising in newspapers, and on pamphlets, brochures and other promotional literature regarding any covered, multi-family dwellings designed or constructed by defendants or any of them, defendants shall place, in a conspicuous location, a statement that the dwelling units meet the accessibility features for persons with disabilities required by the federal Fair Housing Act.
- REPORTING AND DOCUMENT RETENTION REQUIREMENTS
At the present time, defendants are not involved in the construction of multi-family housing nor do they have any current plans to do so.
- Sixty (60) days after the date of entry of this Consent Decree, defendants shall submit to counsel for the United States an initial report regarding the educational program, including signed statements of current supervisory employees, rental or sales agents, and site managers who have completed the educational program (see Section VII).
- Six (6) months after the entry of this Consent Decree, and every six (6) months thereafter for five (5) years, defendants shall submit to counsel for the United States a report regarding new construction and the educational program, and containing the following:
- Defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any written administrative or legal complaint against any of them, or against any of their employees or agents, regarding equal opportunity in housing. They shall also promptly provide the United States all information it may request concerning any such complaint.
- For the term of this Consent Decree, defendants are required to preserve all records related to this Consent Decree, for all properties designed, constructed, owned, operated, or acquired by them. Upon reasonable notice to the defendants, representatives of the United States shall be permitted to inspect and copy any records of defendants or inspect any developments or residential units under defendants' control covered by the Act bearing on compliance with this Consent Decree at any and all reasonable times; provided, however, that the United States shall endeavor to minimize any inconvenience to defendants from such inspections.
- DURATION OF DECREE AND TERMINATION OF LEGAL ACTION
- This Consent Decree shall remain in effect for ten and one-half years (10 1/2) years after the date of its entry.
- By consenting to the entry of this Decree, the parties agree that in the event it is determined in any future action or proceeding brought by the United States or any agency thereof that defendants have violated Section 804(f)(3)(C) of the Fair Housing Act, 42 U.S.C. § 3604(f)(C)(3), at any residential development for which the first building permit was issued subsequent to the date of this Consent Decree, such violation(s) shall constitute a "subsequent violation" pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii). This Paragraph shall not be construed as an admission to a violation of the Fair Housing Act, 42 U.S.C. § 3604(f)(C)(3).
- The United States' Complaint shall be dismissed with prejudice subject to the right of the United States to petition the Court, at any time during the duration of this Decree, to enforce the Decree. The parties to this Consent Decree 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.
- TIME FOR PERFORMANCE
Any time limits for performance imposed by this Consent Decree may be extended by the mutual agreement of the parties.
- COSTS OF LITIGATION
Each party to this litigation will bear its own costs and attorney's fees associated with this litigation.
It is so ORDERED this _____________ day of ______________ 1999.
Johnnie B. Rawlinson
United States District Judge
Agreed to by the parties as indicated by the signatures of counsel below.
FOR PLAINTIFF UNITED STATES:
BILL LANN LEE
Acting Assistant Attorney General
JOAN A. MAGAGNA
BRIAN F. HEFFERNAN
SCOTT P. MOORE
Housing and Civil Enforcement Section
Civil Rights Division
United States Department of Justice
P.O. Box 65998
Washington, D.C. 20004
KATHRYN E. LANDRETH
United States Attorney
BLAINE T. WELSH
Assistant U.S. Attorney
Keefer, O'Reilly and Lubbers
325 South Maryland Parkway
Las Vegas, Nevada 89101
1. The interior of all covered units at RSV #7, RSV #8, RSV #9, and Mes #1 were constructed pursuant to the original plans.
2. For purposes of this Decree, counsel for the United States is Chief, Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice, P.O. Box 65998, Washington, D.C. 20035-5998, Attn: DJ# 175-46-61. > >