Housing And Civil Enforcement Cases Documents

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA


UNITED STATES OF AMERICA,
     Plaintiff,

v.

ALDRIDGE & SOUTHERLAND
BUILDERS, INC.; and
RIVERS & ASSOCIATES, INC.,
     Defendants.

_____________________________


CONSENT DECREE

The United States files this Consent Decree simultaneously with its Complaint against Aldridge and Southerland Builders, Inc. (1) ("Aldridge") and Rivers & Associates, Inc. ("Rivers"), alleging violations of Sections (f)(1)-(3) of the Fair Housing Act, 42 U.S.C. §§ (f)(1)-(3), as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-3619 (the Act).

Defendant Rivers designed and defendant Aldridge & Southerland developed and constructed Bradford Park Apartments ("Bradford Park") located in Greenville, North Carolina. Bradford Park has been fully constructed and is currently being operated and managed by Bradford Park, LLC. Bradford Park consists of 226 dwelling units designed and constructed for first occupancy after March 13, 1991. The United States' Complaint alleges that the defendants engaged in a pattern or practice of discrimination against persons with disabilities by failing to design and construct Bradford Park with the features of accessible and adaptable design set forth in 42 U.S.C. § 3604(f)(3)(C).

The Act requires that, for residential buildings with four or more units, all ground-floor units in non-elevator buildings are "covered units" and must include certain basic features of accessible and adaptable design to make the housing usable by a person with a disability. 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(A). At Bradford Park, 108 of the 226 total units are located on the ground-floor and in non-elevator buildings containing four or more units. Thus, those ground-floor units are "covered multi-family dwellings" within the meaning of 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. 42 U.S.C. § 3604(f)(3)(C). The United States alleges in its Complaint that, as originally designed and constructed, the 108 "covered units" at Bradford Park do not meet the design requirements of the Act.

The parties agree that this Court has jurisdiction over the subject matter of this case. Defendants admit that they failed to design and construct Bradford Park in compliance with the Act. The parties further 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:

  1. GENERAL INJUNCTION

Defendants, their officers, employees, agents, successors and assigns and all other persons in active concert or participation with them are permanently enjoined from discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 U.S.C. § 3604(f)(1) - (3), and as set forth in the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991) (the Guidelines).

  1. CORRECTIVE ACTIONS

The parties recognize that 108 ground-floor units at Bradford Park do not meet the standards of the Act and the Guidelines. Because these 108 units are fully constructed, there are significant practical, structural, and cost impediments to bringing these units into compliance with the Act. To address these violations, defendants have agreed to take the actions set forth 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.

  1. NON-DISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION

  1. Every twelve (12) months, for a period of five (5) years from the date of entry of this Consent Decree, defendant Aldridge shall, regarding any covered, multi-family dwellings intended to be developed or built by it, as evidenced by the completion of the site plans and building construction documents, submit to counsel for the United States (2) the following information: (1) the name and address of the project, (2) a description of the project and the individual units, (3) the name of any site engineer involved with the project, (4) the name of the architect, and (5) a statement from any architect involved with the project 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 comply with the requirements of the Act and Guidelines.

  2. Every twelve (12) months, for a period of five (5) years from the date of the entry of this Consent Decree, for all design contracts for covered multifamily dwellings entered into by defendant Rivers as evidenced by the completion of the site plans and building construction documents, defendant Rivers shall submit to counsel for the United States the following information: (1) the names and addresses of the builders and developers; (2) the name and address of the project; (3) the type of multi-family dwelling that will be constructed (i.e. condominiums or apartments) and the total number of dwelling units planned; and (4) a written statement that the plans include design specifications that comply with the requirements of the Act and the Guidelines.
  1. COMPENSATION OF AGGRIEVED PERSONS

  1. For purposes of this Decree, an "aggrieved person" includes:
    1. Any person who was discouraged or precluded from living at Bradford Park Apartments or was otherwise harmed because the covered units or the public and common use areas of the development did not comply with the Act and the Guidelines; or
    2. Any current or former tenant of a covered unit who paid to modify his or her unit so that the unit would comply with the Act and Guidelines or was otherwise harmed by the alleged failure of the developments to meet the requirements of the Act.

  2. Defendant Aldridge has distributed the notice contained in Appendix "A" to all current tenants of Bradford Park Apartments, as well as persons who inquired about or applied to rent a covered unit of whom defendant has a record of their name and address, within 1 year of the date of the entry of this Consent Decree.

  3. Persons who believe that they are "aggrieved persons" shall have six months from the date of entry of this Consent Decree to contact the United States to be eligible to receive monetary compensation as an aggrieved person under the terms of this Consent Decree.

  4. No later than 180 days after the filing of a timely claim, the United States shall determine whether or not any claimant who has contacted the United States as set forth in subparagraph (C) above, is an aggrieved person as defined by subparagraph (A) above and shall determine an appropriate amount of damages for each such person, provided that:
    1. No person shall be paid any amount pursuant to this paragraph before he or she has executed a written release of all claims, legal or equitable, in the form of Appendix "B" that he or she might have against the defendants relating to the claims asserted in this lawsuit, and has executed a declaration under the penalty of perjury attesting to the facts of the discrimination he or she has suffered; and
    2. The total amount to be paid by the defendants to any individual aggrieved person pursuant to this Section shall not exceed Five Thousand Dollars ($5,000) over the individual's out-of-pocket damages.

  5. The United States shall notify defendants in writing of its determinations pursuant to subparagraph (D) above. Defendants shall have ten (10) days after receipt of written notice to submit to the United States a written objection to the determination of the United States pursuant to subparagraph (D). The United States shall provide a final notice of determination to defendants within thirty (30) days of receiving any objection from defendants. This notice shall set forth the aggrieved person who are entitled to compensation and the amount due to each such person. The United States shall give due consideration to the objections of the defendants in determining the amount paid to any aggrieved person.

  6. No later than thirty (30) days after receiving a final notice of determination pursuant to subparagraph (E), defendants shall deliver to counsel for the United States checks payable to the aggrieved person as directed in the notice. Counsel for the United States shall not distribute any check to an aggrieved person until the United States has received the person's executed release of claims.
  1. RETROFITS

  1. Retrofits to Public and Common Use Areas. Defendant Aldridge has made the following retrofits to the public and common use areas of Bradford Park:
    1. Retrofitted the rental office to meet all of the requirements of the Act and Guidelines applicable to rental offices including, but not limited to, providing an accessible parking stall and curb cut in front of the rental office that provides the shortest accessible route from such parking space to the rental office; and
    2. Constructed at least one curb ramp that meets the requirements of ANSI § 4.7, to access each accessible route to each residential building.

    Additionally, Defendant Aldridge will construct accessible routes to all resident mailboxes that meet all the requirements of the Act and Guidelines.

  2. Compliant Unit Leasing/Vacancy. Defendant Aldridge agrees to make available to prospective tenants one fully retrofitted ground-floor one bedroom unit and ground-floor two bedroom unit at Bradford Park which meet the requirements of the Act and Guidelines. Defendant Aldridge shall implement the following retrofit schedule to meet the requirements of this Section:
    1. Within 30 days of the date of the entry of this Consent Decree, defendant Aldridge shall retrofit at least one ground-floor one bedroom unit and one ground-floor two bedroom unit at Bradford Park so that such units are fully compliant with the Act and the Guidelines;
    2. Defendant Aldridge shall provide any prospective tenant who visits Bradford Park Apartments with the notice attached hereto as Appendix "C" which will inform the prospective tenant that a unit is available with the features of accessible and adaptive design required by the Act, that explains the features of accessible and adaptive design, and that a unit with these features is available upon request for immediate viewing and rental;
    3. Defendant Aldridge may lease the fully compliant units to persons who specifically request a unit that includes features of accessible and adaptable design; and
    4. If defendant Aldridge leases a fully compliant unit or any subsequent unit that is retrofitted pursuant to the requirements of this Section, defendant Aldridge shall retrofit another ground-floor unit with a similar floor plan within thirty (30) days from the date the fully compliant unit is rented (3) and thereafter as necessary to ensure that for the term of the Consent Decree a fully compliant ground-floor one bedroom unit and two bedroom unit are vacant and available at all times to be viewed and rented by any prospective tenant who specifically requests a unit that includes features of accessible and adaptable design.

  3. Additional Retrofits to Individual Units. Upon request by a current tenant or prospective tenant of a ground-floor unit at Bradford Park, defendant Aldridge shall make all the retrofits listed in Appendix "D" so that the unit includes the features of accessible and adaptable design required by the Act and the Guidelines.
  4. Replacement Units. The purpose of the accessibility provisions of the Fair Housing Act is to make all housing units that are covered by the Act usable by and adaptable for persons with disabilities. As a result of the defendants' actions, there are 108 housing units that do not comply with the accessibility and adaptability requirements of the Act, thereby increasing the number of units in Greenville, North Carolina that are not usable by persons with disabilities. Because of the significant practical, structural, and cost impediments to retrofitting all of the non-compliant units to add the features of accessible and adaptable design required by the Act, defendants shall take the actions set forth below.

    Multi-family Replacement Units.

    1. Defendant Aldridge shall construct 25% of the ground-floor units in the next two multi-family residential developments constructed by Aldridge in a manner to include the following features in addition to the features of accessible and adaptable design required by the Act and Guidelines:
      1. At least one bathroom in the unit shall comply with ANSI (4) § 4.32.4, except §§ 4.32.4.4 through 4.32.4.6. Where § 4.32.4 requires the installation of grab bars, reinforcements for the later installation of grab bars shall be sufficient; and
      2. All kitchens shall comply with ANSI § 4.32.5. The work surface required under § 4.32.5.4 shall be located adjacent to the range/oven appliance. Additionally, all oven/range appliances shall have either up-front controls or controls grouped to one side so that an individual need not reach over the burners on the appliance. If the controls are grouped to one side, the work surface shall be adjacent to the side of the oven/range on which the controls are located. (5)
  5. The 25% requirement must result in at least 15 ground-floor units meeting the requirements of this Section in each of the next two multifamily residential developments constructed by the defendant.
  6. The units that contain the added features of accessibility shall be distributed among the classes of dwelling units measured in terms of number of bedrooms. (6) Such units shall be spread throughout the development so that the units are not segregated from the other units in the development. Defendant Aldridge may not charge extra rent, a higher deposit, or any type of premium because the apartment contains the additional accessible features. The cost of the apartments shall be identical to similar apartments that do not contain the additional accessible features.

  7. If Aldridge is solely the builder for a multi-family development, but not the owner and/or developer, it shall use reasonable efforts to reach agreement with the owner and/or developer to construct "replacement units" in such a multi-family development. If reasonable efforts fail, Aldridge need not construct "replacement units" in such multi-family development. Aldridge's failure to construct "replacement units" in such a multi-family development does not relieve Aldridge of its obligations under paragraph V.E. of this Consent Decree to construct "replacement units." If Aldridge reaches agreement with the owner and/or developer and constructs "replacement units" in such a multi-family development, however, any such "replacement units" constructed will count towards the successful completion of the Section V.E. requirement.

  • Failure to Construct Replacement Dwellings. If defendant Aldridge is for any reason unwilling or unable to construct the thirty (30) multi-family replacement units as required by subparagraph (D) within five years of the date of the entry of this consent decree, defendant Aldridge shall pay SIXTY THOUSAND DOLLARS ($60,000) into a fund which shall be distributed by the United States to an organization in North Carolina to assist individuals with disabilities with making modifications to their residential dwellings to provide greater accessibility. The amount defendant Aldridge shall contribute to the fund will be reduced proportionally for each unit constructed pursuant to subparagraph (D). (7)
    1. ADDITIONAL REMEDIES APPLICABLE TO DEFENDANT RIVERS

    1. Within five (5) years from the entry of this Decree, Defendant Rivers shall donate 100 hours of technical assistance to non-profit groups approved by the United States which promote fair housing, disability rights or affordable housing. The technical assistance may include, but not be limited to, providing training on the FHA and FHAG design and construction requirements and drafting plans for low-income accessible housing. Defendant Rivers shall certify that it has met the 100-hour requirement by submitting to the United States statements signed by the recipients of the technical assistance confirming Rivers' donation of technical assistance. The signed statements must be submitted as required in Section IX(C)(3) below.

    2. Within thirty (30) days following the entry of this Decree, Defendant Rivers shall pay FIVE THOUSAND DOLLARS ($5,000) to the United States as a civil penalty pursuant to 42 U.S.C. § 3614(d)(1)(C). Defendant Rivers shall make the check payable to the United States and deliver it to counsel for the United States.
    1. EDUCATIONAL PROGRAM

    Within thirty (30) days of the date of entry of this Consent Decree, defendants shall provide to all its 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 the defendants. Each new supervisory employee, 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 defendant. 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.

    1. NOTICE TO THE PUBLIC OF DEFENDANT ALDRIDGE'S NON-DISCRIMINATION POLICY

    Within ten (10) days of the date of entry of this Consent Decree, defendant Aldridge shall post and prominently display in the sales or rental offices of all covered multi-family housing owned or operated by it, 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. Defendant Aldridge shall also post such a sign in the sales or rental office of any other covered multi-family housing developed or acquired by it 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 Bradford Park, defendant Aldridge shall place, in a conspicuous location, a statement that a dwelling unit, including accessibility features for persons with disabilities required by the federal Fair Housing Act, is available at Bradford Park.

    1. REPORTING AND DOCUMENT RETENTION REQUIREMENTS

    1. 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 Notification, and the educational program, and containing signed statements of current supervisory employees, rental agents, and site managers who have completed the educational program (see Section VII above).

    2. Twelve (12) months after the entry of this Consent Decree, and every twelve (12) months thereafter for a term of five years from the date of the entry of this Consent Decree, defendant Aldridge shall submit to counsel for the United States a report which includes the following information:
      1. documents containing information and certifications for new construction (see Section III above);
      2. signed statements of new supervisory employees, sales or rental agents, and site managers who have completed the educational program during the most recent reporting period (see Section VII above);
      3. a signed statement reporting the progress on the construction of the replacement units required by Section V(D) above, including the number and location of the replacement multifamily and single-family units constructed by defendant since the previous report submitted to the United States;
      4. a signed statement reporting the number of fully compliant units rented and replaced during the most recent reporting period pursuant to the requirements of V(B); and
      5. a signed statement reporting the name and address of any resident of Bradford Park who has requested retrofits and the retrofits completed pursuant Section V(C).

    3. Twelve (12) months after the entry of this Consent Decree, and every twelve (12) months thereafter for a term of five years from the date of the entry of this Consent Decree, defendant Rivers shall submit to counsel for the United States a report which includes the following information:
      1. documents containing information and certifications for new design contracts (see Section III above);
      2. signed statements of new supervisory employees and agents who have completed the educational program during the most recent reporting period (see Section VII above); and

      3. signed statements required by Section VI(A) certifying the number of hours of technical assistance completed towards the 100 hour requirement.

    4. Defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any written administrative or legal complaint against it, or against any employees or agents of defendant, regarding equal opportunity in housing. They shall also promptly provide the United States all information it may request concerning any such complaint.

    5. 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 defendant Aldridge's 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.
    1. REVIEW OF RETROFITS AND CONSTRUCTION OF REPLACEMENT UNITS

    Upon reasonable notice to the defendant, representatives of the United States shall be permitted to inspect the retrofits and replacement units constructed by defendant Aldridge pursuant to the provisions of this Consent Decree to ensure compliance with such provisions including, but not limited to, availability of fully compliant units as required by Section V(B); provided, however, that the United States shall endeavor to minimize any inconvenience to defendant from such inspections.

    1. DURATION OF DECREE AND TERMINATION OF LEGAL ACTION

    1. This Consent Decree shall remain in effect for five (5) years and six (6) months after the date of its entry.

    2. 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 engaged in any future violation(s) of the Fair Housing Act after the date of the entry of this Consent Decree, such violation(s) shall constitute a "subsequent violation" pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii).

    3. The United States' Complaint shall be dismissed without prejudice to the right of the United States to petition the Court, at any time during the duration of this Decree, to reopen the case for the purpose of enforcing 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.
    1. TIME FOR PERFORMANCE

    Any time limits for performance imposed by this Consent Decree may be extended by the mutual agreement of the parties.

    1. 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 January, 2001.

    United States District Judge

    Agreed to by the parties as indicated by the signatures of counsel below.


    FOR PLAINTIFF UNITED STATES: FOR PLAINTIFF UNITED STATES:
    JANICE MCKENZIE COLE BILL LANN LEE
    Assistant Attorney General

    Fenita M. Shepard
    Assistant United States Attorney
    Civil Division
    310 New Bern Avenie
    Suite 800
    Raleigh, NC 87601-1461
    Telephone: (919)856-4530
    Fax: (919) 856-4821

    JOAN A. MAGAGANA
    Chief
    ISABELLE M. THABAULT
    Deputy Chief
    SCOTT P. MOORE
    Attorney
    United States Department of Justice
    Civil Rights Division
    Housing & Civil Enforcement Section
    P.O. Box 65998
    Washington, D.C. 20035-5998
    (202) 307-3801

    FOR DEFENDANT ALDRIDGE & SOUTHERLAND BUILDERS, INC.

    FOR DEFENDANT RIVERS & ASSOCIATES, INC.

    KENNETH WOOTEN
    WARD & SMITH
    P.O. Box 867
    New Bern, North Carolina 28563
    (252) 633-1000

    JOHN L. SHAW
    POYNER & SPRUILL
    3600 Gleenwood Avenue
    Raleigh, North Carolina 27612
    (919) 783-2809

    1. Defendant Aldridge & Southerland Builders, Inc. was responsible for the development and construction of Bradford Park Apartments. The building permits for Bradford Park on file at the City of Greenville Planning Department mistakenly list the builder as Aldridge & Southerland, Inc., which is a separate real estate sales business which was not involved in the development or construction of Bradford Park.

    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# 175-54-129.

    3. Except that if, upon rental of a fully compliant unit, there are no other units with a similar floor plan available for retrofitting and rental, defendant Aldridge shall fully retrofit the next ground-floor unit with a similar floor plan that becomes vacant within thirty (30) days of the date such unit becomes vacant.

    4. ANSI refers to the American National Standard for Buildings and Facilities - Providing Accessibility and Usability for Physically Handicapped People A117.1-1986.

    5. For purposes of constructing multi-family replacement units under this subparagraph, the "adaptability" provisions of ANSI §§ 4.32.2 and § 4.32.3 shall not apply.

    6. For example, if the development has 40 two bedroom ground-floor units and 80 one bedroom ground-floor units, 10 of the two bedroom units and 20 of the one bedroom units must be constructed to include the added features of accessibility required under this subparagraph.

    7. For example, if defendant Aldridge constructs only 15 total replacement units within five years of the date of the entry of this Consent Decree, defendant Aldridge shall pay $30,000 into the fund described in this subparagraph


    Document Filed: January 19, 2001 > >

    Updated August 6, 2015

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