Housing And Civil Enforcement Cases Documents




I. Introduction

This Settlement Agreement is between the United States, Tiberti-Blood, Inc., John D. Burke, L.R. Nelson Civil Engineers, and Spanish Gardens Condominiums Homeowners Association to settle alleged violations of Section 804(f)(3)(C) of the federal Fair Housing Act with respect to the design and construction of Spanish Gardens Condominiums (a.k.a. Desert Lion Condominiums).

II. Background

Spanish Gardens is a condominium community located at 1516 Jenny Lynn Drive, Henderson, Nevada. Tiberti-Blood, Inc. is the developer and builder of Spanish Gardens Condominiums and therefore responsible for its design and construction. L.R. Nelson is the civil engineer. Tiberti-Blood, Inc. and L.R. Nelson Civil Engineers are collectively referred to hereafter as "Respondents." John D. Burke is the architect and is referred to hereafter as "Burke."

Spanish Gardens Condominiums is comprised of 28 buildings containing a total of 224 units, 112 of which are ground-floor units. The 112 ground-floor units are "covered multi-family dwellings" within the meaning of the Fair Housing Act, 42 U.S.C. § 3604(f)(7)(A).

On October 2, 1997, Ronald Ray Smith and the Disabled Rights Action Committee (DRAC) (Complainants) filed a complaint under the Fair Housing Act, 42 U.S.C. §§ 3601-3619, (the Act) against Tiberti-Blood, Inc., John D. Burke, L.R. Nelson Civil Engineers, and the Spanish Gardens Condominiums Homeowners Association (the "Association"), alleging that these parties discriminated against Complainants based on disability in the design and construction of Spanish Gardens Condominiums.

The United States Department of Housing and Urban Development (HUD) initiated an investigation into Complainants' allegations. As a result of that investigation, HUD concluded that Spanish Gardens Condominiums did not appear to comply with the new construction requirements of the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(C). On January 27, 2000, HUD referred the complaint to the Civil Rights Division of the Department of Justice for possible pattern or practice litigation.

In general, the Act requires that all ground-floor units in non-elevator buildings with four or more units include certain basic accessibility and adaptability design features intended to make housing usable or adaptable by a person who is, or who becomes, disabled. 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 using a wheelchair can maneuver about the space.

As constructed, HUD found that various public and common use areas of the property lack an accessible route. HUD also found that a number of the "covered" units at Spanish Gardens do not fully comply with the above stated requirements of 42 U.S.C. § 3604(f)(3)(C). The HUD investigation of buildings 1 through 23 revealed barriers in the height of the primary entrance thresholds to the covered dwelling units, as well as in the positioning of the thermostats and electrical outlets.

III. Statement of Agreement

All parties agree that the controversy outlined above should be resolved without judicial action. This Settlement Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by the parties or agents of the parties, that is not contained in this Settlement Agreement will be enforceable under its provisions. This Settlement Agreement is limited to the factual allegations set forth in Section II above and it does not purport to remedy any other potential violations of the Fair Housing Act or any other federal law. Nor does this Agreement affect the continuing responsibility of Respondents and Burke to comply with all aspects of the Fair Housing Act.

The Spanish Gardens Condominiums Homeowners Association has been included as a party to this settlement solely because it controls access to the public and common use areas of the property and is therefore a necessary party for relief.

IV. Retrofit Actions

1. After Tiberti-Blood, Inc. was contacted by HUD regarding the complaint of design and construction deficiencies, it made efforts to resolve many of the issues discussed in Section II, above. Specifically, Tiberti-Blood, Inc. took the following corrective actions to the public and common use areas at an approximate cost of $35,000:

ï½· Removed and replaced numerous concrete sidewalks, curbs gutters, landings, and approaches;

ï½· Installed handicapped striping and parking signage;

ï½· Constructed and modified two garages to meet ADA specifications; and

ï½· Retrofitted two pool buildings including modifications to four bathrooms and two exterior showers per ANSI specifications.

2. To further remedy the design and construction problems in the public and common use areas of the complex, within 60 days of this agreement, Respondents shall submit to the United States, contracting plans to complete the retrofits to the public and common use areas set forth in Appendices A and D. (1)

3. Within 60 days after the contracting plans have been approved by the United States, Respondents shall complete the retrofits set forth in Appendix A according to the approved plans, within reasonable standards of the construction industry.

4. After the retrofits to the common and public use areas are complete, Respondents shall so inform counsel for the United States and shall certify that the retrofits have been completed in compliance with this Agreement. The United States may then conduct an on-site survey of Spanish Gardens Condominiums to assess whether or not the modifications to the public and common use areas have been correctly made.

5. To further remedy the accessibility problems in the covered dwelling units, within 10 days of this agreement, Respondents shall deposit an initial sum of ELEVEN THOUSAND DOLLARS ($11,000.00) into an interest-bearing account (the "FHAA fund") to provide for all costs associated with the interior retrofits set forth in Appendix B. Should the FHAA fund run out before three and one-half years has elapsed from the date of this agreement, Respondents will replenish the FHAA in $1,000 increments until all costs associated with any timely, requested, interior retrofit has been paid.

6. The FHAA fund shall be administered by an entity designated by the United States (the Entity (2)). The Entity may reimburse itself out of the FHAA Fund for reasonable administration expenses associated with administering the FHAA Fund and managing the retrofits, provided that such expenditures are approved by the United States and are not used to supplement the salaries or compensate employees or agents of the Entity. The total administrative costs shall not exceed 15% of all modifications performed to the covered units.

7. Within ten (10) days of the entry of this Agreement, and annually for three (3) years thereafter, the Entity shall provide the written notice (the Notice) and form attached at Appendix C to all Spanish Garden ground-floor unit homeowners, stating that all of the modifications to their unit specified at Appendix B are available without cost to them (the Interior Retrofits). The form shall also direct the homeowner to return the form to the Entity.

8. The Entity shall complete the Interior Retrofits on a first-come, first-served basis within thirty (30) days of the request.

9. All interior retrofits will be performed within reasonable standards of the construction industry.

10. Within 180 days of this Agreement, and thereafter on the anniversary of the Agreement throughout the term of the Agreement, the Entity shall submit a report to the United States that includes all documents concerning the interior modifications required in section IV of this Agreement, including: (a) copies of all modification selection forms submitted by unit owners; (b) copies of all written approvals/disapprovals of requested interior retrofits; (c) copies of all homeowner/applicant certifications of completed retrofits; and (d) an account of any expenditures the Entity has made from the FHAA Fund.

11. If, after three and one-half years from the date of this agreement, a balance remains in the FHAA Fund, Tiberti-Blood has proposed that the balance should be paid to Christmas in April, Las Vegas, Nevada, to be used for the purpose of retrofitting houses in the Clark County area in order to increase their accessibility for persons with disabilities. This arrangement is acceptable to all parties to this Settlement Agreement.

12. The Association shall cooperate with Respondents and the Entity to carry out the corrective actions specified at Appendices A & B. Burke will cooperate with the Association, Respondents, and the Entity to assist in consulting to carry out the corrective actions specified in Appendices A, B, and D.

V. Future Actions

1. The respondents and all persons in active concert or participation with them, will not violate the Fair Housing Act, 42 U.S.C. § 3601 et seq.

2. While Tiberti-Blood, Inc., has represented that it no longer builds multi-family housing, should Tiberti-Blood, Inc. ever re-enter the multi-family housing market, it shall submit to counsel for the United States the following information for every covered multi-family dwelling they intend to build: (a) the name(s) of the architect; (b) the name and address of the project; and (c) a description of the project and the individual units. This reporting obligation is limited to projects that have received approval of zoning and issuance of a building permit for construction.:

3. For the term of this Agreement, Respondents shall advise counsel for the United States in writing no later than fifteen (15) days after receipt of any written administrative or legal complaint against them, or against any of their employees or agents, regarding equal opportunity in housing.

4. For the term of this Agreement, Respondents are required to preserve all records related to this Agreement for all properties designed, constructed, owned, operated, or acquired by them. Upon reasonable notice to the Respondents, representatives of the United States shall be permitted to inspect and copy any records of theirs or inspect any developments or residential units under their control covered by the Act bearing on compliance with this Agreement at any and all reasonable times. The United States shall endeavor to minimize any inconvenience to Respondents from such inspections.

VI. Duration of Agreement and Enforcement

1. Except for the obligations of the Association with respect to the balance of the FHAA Fund (as specified in Part IV, ¶¶11-12) the provisions of this Agreement shall remain in effect for three and a half (3 ½) years after the date it has been signed by representatives of the parties as evidenced by their signatures below.

2. If the United States believes any provision of this Agreement has been violated, it shall promptly advise counsel for the other parties in writing of the nature of that violation, and, within thirty (30) days of receipt of said written notice from the United States, the parties shall confer in a good faith attempt to resolve the issue. In the event the parties are not able to resolve this issue to the reasonable satisfaction of the United States, the United States may seek to enforce the Agreement, or any provision thereof, in the United States District Court for the District of Nevada through initiation of a lawsuit. Failure of the United States to enforce this entire Agreement or any provision of it with regard to any deadline or any other provision contained herein shall not be construed as a waiver by the United States of any right to do so.

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

FOR THE UNITED STATES:

____________________________

JOAN A. MAGAGNA
Chief
TIMOTHY A. MORAN
Deputy Chief
SUNNY PIETRAFESA
Trial Attorney
Housing & Civil Enforcement Section
Civil Rights Division
Department of Justice
950 Pennsylvania Avenue
Washington, D.C. 20530
(202) 616-2217

FOR TIBERTI-BLOOD, INC.:

____________________________
FOR JOHN D. BURKE:

____________________________
FOR L.R. NELSON CIVIL ENGINEERS:

____________________________

FOR SPANISH GARDENS CONDOMINIUM
HOMEOWNERS' ASSOCIATION:

____________________________



APPENDIX A PUBLIC AND COMMON-USE AREA RETROFITS

1. Add a walkway connection to the public right of way sidewalks at either the complex entrance at Jenny Lynn Drive or Lake Placid Terrace [Req. 1];

2. Correct the slopes and cross slopes in compliance with ANSI 4.3.7 on the path from the parking area to the dwelling units between buildings 19 and 16 [Req. 2];

3. Retrofit the valley gutter to create an accessible route to the accessible parking space in the northwest corner adjacent to Building 10 [Req. 2];

4. Add handrails and re-lay approximately 190 square feet of the concrete path between Buildings 6 and 7 such that its slopes and cross slopes are compliant with ANSI 4.3.7 [Req. 2];

5. Provide an accessible route from the parking area of Lake Placid Terrace to Buildings 5 and 6 [Req. 2];

6. Add an additional sidewalk through the green area on the southwest corner of Building 1 to provide an accessible route to the Clubhouse [Req. 2];

7. Add guardrails or some other permanent fixture in the area below the outdoor staircases of each building so that the underside of the protruding staircase is perceptible compliant with ANSI 4.4.2 [Req. 2];

8. Add and/or raise accessible parking signs to 60" [Req. 2; ANSI 4.6.2];

9. Replace the drinking fountain in the pool area adjacent to the Clubhouse ("Pool Area") to allow 27" x 30" x 17 - 19" of clear knee space below the fountain [Req. 2; ANSI 4.15.5];

10. Correct the sloping of the clear space below the drinking fountain in the Pool Area compliant with ANSI 4.15.5 [Req. 2];

11. Level the maneuvering space at the Pool Area gate compliant with ANSI 4.13.6 [Req. 2];

12. Lower and add accessible hardware to the Pool Area gate [Req. 2]; and

13. Level the maneuvering area at the Pool Area Men's bathroom compliant with ANSI 4.13.6 [Req.2];

14. Provide 18" maneuvering clearance on the pull side of the Pool Area bathroom doors [Req. 2; ANSI 4.13.6];

15. Correct the clearance around the toilet in the Women's Pool Area bathroom to provide 18" from the wall to the toilet [Req. 2; ANSI 4.17.3]; and

16. Replace the spa control with accessible hardware [Req. 2].


APPENDIX B DWELLING UNIT RETROFITS

1. Lower front entrance thresholds such that the exterior threshold combined with the height difference between interior and exterior finish surfaces does not exceed 1.25" [Req. 4(4)];

2. Lower thermostat control to 54" above grade [Req.5]; and

3. Raise electrical outlets to 15" above grade [Req. 5].


APPENDIX C HOMEOWNER NOTICE OF RETROFITS FOR SPANISH GARDENS CONDOMINIUMS

The federal Fair Housing Act (3) requires that ground-floor units in newer multi-family dwellings have certain features of physical accessibility for people with disabilities.

Due to potential litigation by the United States Department of Justice, inaccessible aspects of our community have been brought to the attention of the builder and developer of Spanish Gardens. We are in the process of correcting inaccessible aspects of the public and common use spaces. If you would like to make your condominium more accessible, the following features of your home may be modified at your request, at no cost to you. The available alterations may include:

ï½· Lowering front entrance thresholds

ï½· Lowering thermostat controls

ï½· Raising electrical outlets

It is not necessary that you or any member of your household be disabled in order to request these modifications. If you would like to have any of these modifications made to your home, please fill out the form below and contact _______ at the Spanish Gardens Condominium Homeowners Association. All requests must be made by __________, 200_.

MODIFICATION SELECTION FORM

Name of Resident:

Address:

I am aware that all the following modifications are available for my unit, at no cost to me, and am hereby requesting that my unit be modified as follows (4):

(Resident: Please initial the appropriate column and return this form to: ______________)

YES NO Modification
Lower entry door threshold so that the exterior threshold combined with the height difference between interior and exterior finish surfaces does not exceed 1.25"
Lower thermostat control to 54" above grade
Raise electrical outlets to 15" above grade

____________________________ _________________

Signature of Resident Date


1. 1 For the purposes of this Settlement Agreement, correspondence to the United States may be sent to: Chief, Housing & Civil Enforcement Section, Civil Rights Division, DJ # 175-46-88, United States Department of Justice, 950 Pennsylvania Avenue, Washington, D.C. 20530, or as otherwise directed by the United States.

2. The Entity will be Horizon Community Management, the current property manager for the Spanish Gardens Condominiums Homeowners Association.

3. 3 42 U.S.C. § 3601 et seq.

4. * The measurements provided in the these modifications are those set forth according to the Department of Housing and Urban Development Fair Housing Accessibility Guidelines and the 1986 American National Standard for buildings and facilities providing accessibility and usability for physically handicapped people.


Document Executed: April 1, 2003 > >
Updated August 6, 2015

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