KEVIN V. RYAN (CSBN 118321)
United States Attorney
JOCELYN BURTON (CSBN 135879)
Chief, Civil Division
Assistant United States Attorney
450 Golden Gate Avenue, Box 36055
San Francisco, CA 94102
Telephone: (415) 436-7198
Attorneys for Plaintiff
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
UNITED STATES OF AMERICA,
LYTTON IV HOUSING CORPORATION,
| No. C 00-21079 RMW |
REVISED CONSENT DECREE AND
This Consent Decree, by the parties to this action, and the parties to the related action (Mid-Peninsula Citizens for Fair Housing v. Lytton Gardens, Inc., et al., Case No. C 00-20771 RMW), resolves the above-captioned case brought by the United States of America against defendants Lytton IV Housing Corporation, E.M. Schaffran and Company, Carrasco & Associates, and Topflight Specs (collectively referred to as "the Defendants").
On October 20, 2000, the United States filed a complaint alleging that the Defendants had discriminated against persons with disabilities or denied fair housing rights to a group of persons with disabilities by failing to design and construct the covered multifamily dwellings at Lytton Courtyard in Palo Alto, California, in accordance with the Fair Housing Act ("the Act"). 42 U.S.C. § 3604(f)(1), (2) & (3)(C).
The above-described dwellings were built for first occupancy after March 13, 1991. Each of the 51 apartments is a "covered multifamily dwelling" within the meaning of 42 U.S.C. § 3604(f)(7)(B). Thus, these units and the public and common use areas are required by the Act to contain the features of accessible and adaptable design set forth at 42 U.S.C. § 3604(f)(3)(C).
Defendant Lytton IV Housing Corporation is the owner of Lytton Courtyard and is responsible for the design, development and construction of the subject dwellings. Defendant Carrasco & Associates acted as the architect for the Lytton Courtyard project. The Defendants deny liability and wrongdoing in connection with the allegations and claims made by the United States in this action. However, the parties have agreed that, in order to avoid protracted and costly litigation, the claims against the Defendants should be resolved without further proceedings and an evidentiary hearing.
The United States and the Defendants agree that this Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. § 1345 and 42 U.S.C. § 3614(a). Therefore, as indicated by the signatures appearing below, the United States, Lytton IV Housing Corp. and Carrasco & Associates agree to the entry of this Consent Decree.
It is hereby ORDERED, ADJUDGED AND DECREED:
II. GENERAL INJUNCTION
The Defendants Lytton IV Housing Corporation and Carrasco & Associates, and 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 Act, 42 U.S.C. § 3604(f)(1), (2) and (3)(C), and as set forth in the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472-9515 (1991). (1) This includes:
- Discriminating in the sale or rental, or otherwise making unavailable or denying, a dwelling to any buyer or renter because of a handicap of that buyer or renter, any person residing in or intending to reside in that dwelling after it is sold or made available, or any person associated with that buyer or renter;
- Discriminating against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of facilities in connection with such a dwelling, because of a disability of that person, a person residing in or intending to reside in the dwelling after it is sold, or any person associated with that person; and
- Designing and constructing covered multifamily dwellings for first occupancy after March 13, 1991, in such a manner that:
- The public use and common use portions of the dwellings are not readily accessible to and usable by persons with disabilities;
- All the doors designed to allow passage into and within all premises within such dwellings are not sufficiently wide to allow passage by handicapped persons in wheelchairs;
- All premises within such dwellings do not contain the following features of adaptive design: i) an accessible route into and through the dwelling; ii) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; iii) reinforcements in bathroom walls to allow later installation of grab bars; and iv) useable kitchens and bathrooms, such that an individual using a wheelchair can maneuver about the space.
4. Retaliating against the Mid-Peninsula Citizens for Fair Housing, its employees, any of the tenants at the subject properties, any witness, any aggrieved person, or anyone else for his/her participation in this case.
5. Taking any other actions that violate the Fair Housing Act, 42 U.S.C. § 3601-19.
III. CORRECTIVE ACTIONS
All parties recognize that the 51 apartments and the public and common use areas at Lytton Courtyard are required to meet the Act's design and construction requirements. To address the violations alleged by the United States, the defendants agree to take the following corrective actions:
A. Pursuant to the terms of the settlement reached by all parties on October 9, 2002, the following entities or defendants will pay the following amounts to cover the costs of modifying Lytton Courtyard: Carrasco & Associates - $390,000 (three hundred and ninety thousand dollars); Lytton IV Housing Corporation - $200,000 (two hundred thousand dollars); Dolan Concrete - $25,000 (twenty five thousand dollars); and American Steel - $5,000 (five thousand dollars). From the aforementioned amounts, $87,500 (eighty-seven thousand five hundred dollars) shall be paid as specified in section V of this decree. Lytton IV Housing Corporation shall establish an interest bearing checking account for the specific use of maintaining the remaining $532,500 (five hundred and thirty-two thousand and five hundred dollars) from which the costs of the modifications shall be paid.
B. Defendant Lytton IV Housing Corporation agrees to make the modifications specified at Appendices A-B of this Consent Decree with respect to the 51 covered dwellings and the public and common use areas at the subject complex. Because, as described in the preceding paragraph, defendant Carrasco & Associates is paying money toward these modifications, it is under no obligation to undertake any of the modifications set forth in Appendices A-B. Because as described in the preceding paragraph, defendant Lytton IV Housing Corporation is paying money toward these modifications and agreeing to make the modifications specified in Appendices A-B of this Consent Decree, defendant Lytton IV Housing Corporation will have no obligation to undertake accessibility modifications other than as expressly set forth in Appendices A-B of this Consent Decree. Lytton IV Housing Corporation shall be responsible for completing all modifications even if the costs of the modifications exceed $532,500.
1. Within 30 days, defendant Lytton IV Housing Corporation will submit a best efforts application for all necessary permits. Thereafter, Lytton IV Housing Corporation will use its best efforts to secure the necessary permits in a timely manner. Within 90 days from the issuance of all necessary permits, Defendant Lytton IV Housing Corp. shall complete the accessibility modifications specified at Appendix A.
2. By no later than October 9, 2005, Defendant Lytton IV Housing Corporation will complete the accessibility modifications listed at Appendix B.
3. As agreed by Mid-Peninsula Citizens for Fair Housing and Lytton IV Housing Corporation, Architect Zachary Nathan will oversee the modifications listed in Appendices A-B of this consent decree. Lytton IV Housing Corporation will employ Mr. Nathan for this purpose. Mr. Nathan must review and certify in writing all payments to the contractors performing the modifications before payment may be made from the checking account. Mr. Nathan will inspect all completed work to verify that it complies with the terms of this Consent Decree. Lytton IV Housing Corporation shall keep records of all modification costs and payments, including the name, address and telephone number of the individual or entity to whom money from the checking account were disbursed; date of disbursement; and amount of disbursement. The United States shall have full access at any and all reasonable times and upon reasonable notice to all documentation concerning the modifications and their costs, including all invoices presented for payment and checking account records.
D. For purposes of enforcing Section II of this Decree, making only the accessibility modifications set forth in the appendices to this decree shall not constitute a violation of the FHA.
IV. NON-DISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION
For a period of 3 years from the date of entry of this Consent Decree, Defendants Lytton IV Housing Corporation and Carrasco & Associates shall submit to the United States information regarding any covered multifamily dwellings that the Defendants design and/or intend to build before any applications are made for initial building permits. (2) The following information shall be submitted: a) the name and address of the project; b) the names and addresses of all architects and site engineers; c) a description of the project and the individual units, including number and type of dwellings and amenities in the project; and d) a statement by an architect knowledgeable in the design and construction requirements of the Act, which describes his/her knowledge and training in accessible design and states that he/she has reviewed the plans and that, to the best of his or her professional judgment and experience, the plans include design specifications that fully comply with the requirements of 42 U.S.C. § 3604(f)(3)(C), HUD's Fair Housing Guidelines and HUD's Fair Housing Act Design Manual, except for those instances where said requirements conflict with requirements imposed by the State of California, local building jurisdiction or other entity having jurisdiction ("local requirements") over the project in question and the local requirements provide more access to individuals with disabilities.
V. DAMAGES FOR MID-PENINSULA CITIZENS FOR FAIR HOUSING
Defendant Lytton IV Housing Corporation shall pay to the Mid-Peninsula Citizens for Fair Housing damages, attorneys' fees and costs in the amount of $87, 500 in connection with the settlement of Case No. C 00-20771.
VI. EDUCATIONAL PROGRAM
Within 90 days of the date of entry of this Consent Decree, Defendants Lytton IV Housing Corporation and Carrasco and Associates shall provide to all management employees involved in the design, construction, sale or rental of covered multifamily dwellings: (1) a copy of this Consent Decree; and (2) instruction on (i) the Decree's terms and (ii) their responsibilities and obligations thereunder. For purposes of this section, the phrase "management employees" shall apply, in the case of Carrasco & Associates to any licensed architects employed by Carrasco & Associates during the term of this consent decree.Defendants Lytton IV Housing Corporation and Carrasco and Associates shall bear all expenses associated with this instruction. Defendant Lytton IV Housing Corporation and Carrasco and Associates shall provide this instruction to each new management employee involved in the design, construction, sale or rental of multifamily dwellings within 90 days after the date the employee commences an employment, agency, or contractual relationship with the relevant Defendant. Defendants shall require each management employee to sign a statement acknowledging that he/she received, read and understands the Decree. These signed statements shall be retained by Defendants Lytton IV Housing Corporation and Carrasco and Associates for the duration of this Consent Decree and shall be provided to the United States for inspection upon request.
VII. PUBLIC NOTICE OF NON-DISCRIMINATION POLICY
Within 30 days of the date of entry of this Decree, Defendant Lytton IV Housing Corporation shall post and prominently display in the sales or rental offices of any covered multifamily dwellings owned or operated by him/her/it a sign no smaller than 10" by 14" indicating that all dwellings are available for sale or rental on a nondiscriminatory basis. Defendant Lytton IV Housing Corporation shall also post such a sign in the sales or rental office of any other covered multifamily housing developed or acquired by it during the term of this Decree within 30 days of when that defendant commences construction or purchases the property. A poster that comports with 24 C.F.R. Part 110 will satisfy this requirement.
VIII. ADDITIONAL REPORTING AND DOCUMENT RETENTION REQUIREMENTS
For the duration of this Decree, Defendants Lytton IV Housing Corporation and Carrasco and Associates shall advise counsel for the United States in writing within 15 days of receipt of any written administrative or legal complaint against that Defendant, his/her/its employees or agents, regarding equal opportunity in housing, including formal and informal complaints of discrimination under the Act. The relevant Defendant also shall promptly provide the United States all information it may request concerning any such complaint.
For the duration of this Decree, the Defendants Lytton IV Housing Corporation and Carrasco and Associates are required to preserve all records related to this Decree regarding the subject properties and all future covered multifamily dwellings 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 of Defendants' records, except those protected by attorney-client privilege, attorney work product doctrine or confidential financial records, and inspect any covered dwelling that is the subject of this Decree or that is under the Defendants' control at any and all reasonable times so as to determine compliance with the Consent Decree; provided, however, that the United States shall endeavor to minimize any inconvenience to the Defendants from such inspections and the United States shall not inspect records as to which any tenant has a privacy right unless that tenant has consented in writing to the inspection.
IX. DURATION OF DECREE AND TERMINATION OF LEGAL ACTION
This Consent Decree shall remain in effect for three years after the date of its entry. The complaint in this action shall be dismissed without prejudice to the United States to petition the court to reopen the case for purposes of enforcing the Decree. In addition, prior to the expiration of the Decree's term, the United States may move the Court to extend the duration of the Decree in the interests of justice. The burden shall be on the United States to prove that an extension is necessary. At the conclusion of the term of this Decree, the complaint shall be deemed dismissed with prejudice. However, the violation of or noncompliance with the terms of this Decree by one defendant shall not operate to extend the terms of this Decree as to any other defendant.
Written notice of any dispute shall be provided to Lytton IV Housing Corporation in care of its CEO, 437 Webster Street, Palo Alto, CA 94301. 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 the Defendants to perform in a timely manner any act required by this Decree or to act in violation of any provision thereof, the United States 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.
By consenting to entry of this Decree, the United States and Defendants Lytton IV Housing Corporation and Carrasco and Associates agree that in the event it is determined in any future action or proceeding brought by the United States or any agency thereof that any of the Defendants engaged in any violation(s) of the Fair Housing Act, such violation(s) shall constitute a "subsequent violation" pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii) for that defendant.
X. TIME FOR PERFORMANCE
Any time limits for performance imposed by this Consent Decree may be extended by the written mutual agreement of the United States and the relevant Defendant(s).
XI. COSTS OF LITIGATION
Each party to this Consent Decree shall bear its own costs and attorneys' fees associated with this litigation.
|DATED: April ___, 2003|
KEVIN V. RYAN
|CLAPP, MORONEY, BELLEGAMBA AND VUCINICH|
|Dated: April ____, 2003|| ___________________________________|
GREGORY C. SIMONIAN
Attorneys for Defendant Lytton IV Housing Corporation
|GORDON & REES|
|DATED: April ___, 2003|| _______________________________________|
DION N. COMINOS
Attorneys for Defendant Carrasco & Associates
O R D E R
IT IS SO ORDERED.
| RONALD M. WHYTE|
United States District Judge
1. This document uses the term "disability" rather than "handicap" which the Act uses. For purposes of this Decree, the term "disability" shall have the same meaning as the term "handicap" as defined by the Act.
2. Submissions required to be made to plaintiff shall be delivered to: Chief, Housing & Civil Enforcement Section, Civil Rights Division, U.S. Department of Justice, 950 Pennsylvania Ave., Northwestern Bldg., Washington, D.C. 20530, Attn: DJ No. 175-11-311.
Document Entered: March 12, 2003 > >