Housing And Civil Enforcement Cases Documents

UNITED STATES OF AMERICA,                             Cv. No. 01-115-S-BLW

          Plaintiff,
                                                                                    CONSENT DECREE
vs.

CANAL STREET APARTMENTS, JAMES
AULD, LORNA AULD, AULD
INVESTMENT PROPERTIES, ROBERT
STEWART, STEWART MILES &
ASSOCIATES,

          Defendants.

This Consent Decree resolves the above-captioned case brought by the United States of America against defendants Canal Street Apartments, James Auld, Lorna Auld, Robert Stewart, Stewart Miles & Associates ("Defendants") ⁽¹⁾. The Complaint alleges that Defendants discriminated against persons with disabilities by failing to design and construct the covered multifamily dwellings at the Canal Street Apartments in Boise, Idaho ("Canal Street") in accordance with subsection 804(f)(3)(C) of the Fair Housing Act ("the Act"), 42 U.S.C. § 3604(f)(3)(C).

Defendants Auld are the developers and owners of Canal Street, which is an apartment complex consisting of 72 dwelling units in two-story, non-elevator buildings, in nine separate 8-unit buildings located at 2410, 2420, 2430, 2440, 2450, 2460, 2470, 2480, and 2490 Canal Street, Boise, Idaho. There are two single level unit styles: a studio unit, and a one-bedroom unit. In the entire complex there is one (1) modified studio unit designated as a "handicap unit." These are " covered multifamily dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(B). The 24 covered dwelling units in two-story, non-elevator buildings in six separate 8-unit buildings are located at 2410, 2450, 2460, 2470, 2480 and 2490 Canal Street. The apartments and the common areas of Canal Street are subject to the requirements of § 3604(f)(3)(C), which mandates the following features of accessible and adaptive design: (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 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 using a wheelchair can maneuver about the space. Defendants deny that they failed to design and construct Canal Street in compliance with those requirements.

The United States and 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). Defendants have agreed to this Consent Order in settlement of disputed claims. Defendants do not admit any liability and have specifically denied the same. The parties also agree that the claims against Defendants should be resolved without further proceedings or an evidentiary hearing. Therefore, as indicated by the signatures appearing below, the parties agree to the entry of this Consent Decree.

It is hereby ADJUDGED, ORDERED, and DECREED:

Defendants, their officers, employees, agents, successors and assigns, and all other persons in active concert or participation with them are permanently enjoined from:

A. Discriminating on the basis of disability, as prohibited by the 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 "); and

B. Taking any other action that violates the federal Fair Housing Act, 42 U.S.C. § 3601 et seq.

Defendants agree to take the corrective actions specified herein. Defendants agree to take the corrective actions necessary to bring Canal Street into compliance with the Act and the Guidelines, including those actions described in this section and Appendix A. In the event that Defendants intend to sell any portion of the Canal Street, including a common area or an individual unit, Defendants shall take all the said corrective actions before that portion is offered for sale.

1. Public and Common Use Areas:
   1. Within 180 days from the date of entry of this Decree, Defendants shall modify the public and common use areas of Canal Street to bring them into compliance with the Act and the Guidelines. Such modifications shall include at least those set forth in Appendix A, Part A, "Public and Common Use Area." Defendants shall pay all expenses associated with those modifications.
   2. Within 210 days from the date of entry of this Decree, an architectural firm (or other person or entity with expertise in the design and construction requirements applicable to multi-family housing), approved by the United States, shall conduct on-site surveys at Canal Street and provide written certification to the parties as to whether or not Defendants have correctly made the modifications to public and common use areas set forth in Appendix A, Part B, "Retrofit Dwelling Units", and whether the public and common use areas of Canal Street have been brought into compliance with the Act and the Guidelines. ⁽²⁾

      If such surveys indicate that not all of the required retrofits have been made, Defendants shall correct any deficiencies within 30 days and submit a new certification. This process shall continue until the person or entity certifies that all of the modifications in Appendix A have been made, and that the public and common use areas of Canal Street have been brought into compliance with the Act and the Guidelines. Defendants shall pay all costs associated with the surveys and certifications specified above.

2. Dwelling Units:
   1. Within 30 days of the entry of this Order, Defendants shall provide the written Notice attached at Appendix B to current Canal Street tenants residing in covered ground floor units stating that, if they have need for handicap accessibility, modifications to bring their unit into compliance with the Act and Guidelines are available without cost to them. Defendants shall make all modifications within 30 days of the request of a tenant.
   2. If, after the Notice at Appendix B is distributed, a current tenant does not choose to request all of the available retrofitting, Defendants shall modify those units agreed upon by the parties and set forth in the following paragraph II, 2(c), and in Appendix A, Part B, Retrofit Dwelling Units to bring them into compliance with the Act and the Guidelines no later than 30 days from the date on which the units become vacant or before the units are occupied by another tenant, whichever occurs earlier. Such modifications shall include at least those set forth in Appendix A, Part B, "Retrofit Dwelling Units."
   3. Notwithstanding the foregoing provisions, the one (1) presently designated " handicap " unit shall be brought into full compliance, and all covered ground floor units agreed upon by the parties (hereinafter agreed "retrofit dwelling units") must be retrofitted to comply with the Act and Guidelines (including at least those modifications set forth in agreed "Retrofit Dwelling Units", Appendix A, Part B) within five (5) years after entry of this Consent Decree, even if there has not been a vacancy in that unit since the entry of this Decree. In addition to the one (1) " handicap " unit, there are eleven (11) agreed retrofit dwelling units, plus the existing "handicap unit " in Building 2490, with at least one retrofit dwelling unit in each of the remaining five (5) covered buildings.
   4. On a yearly basis beginning one year from the entry of this Decree, an architectural firm (or other person or entity with expertise in the design and construction requirements applicable to multifamily housing), approved by the United States, shall conduct on-site surveys at Canal Street and provide written certification to the parties as to whether or not the Defendants have correctly made the modifications set forth in Appendix A, "Retrofit Dwelling Units" and brought the units that have been retrofitted into compliance with the Act and the Guidelines.
   5. If such surveys indicate that not all of the required retrofits have been made, Defendants shall correct any deficiencies within 30 days of the survey report and submit a new certification. This process shall continue until the person or entity certifies that all of the necessary modifications have been made. Defendants shall pay all costs associated with the surveys and certifications specified above.
   6. Defendants shall also include a provision, approved by the United States, in all leases that are signed or renewed after entry and before termination of this Decree specifying, consistent with subsection II(2)(a) above, that the Defendants will have the right to modify the unit to bring it into compliance with the Act and Guidelines if the tenant is still living in the unit up to five years after entry of the decree.
   III.NON-DISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION

   For a period of five (5) years from the date of entry of this Consent Decree, Defendants shall, regarding any covered, multi-family dwellings to be developed and/or built by them, alone or together, submit the following information to counsel for the United States before applying for the initial building permits for the project: (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 written 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.

   IV. DAMAGES TO INTERMOUNTAIN FAIR HOUSING COUNCIL

   Defendants shall pay the total sum of THREE THOUSAND THREE HUNDRED DOLLARS ($3,300.00) in monetary damages to the Intermountain Fair Housing Council for its damages as a result of Defendants' failure to design and construct Canal Street in compliance with the Act. Defendants shall pay said money within 60 days of the date of entry of this decree, by sending a check payable in that amount to Intermountain Fair Housing Council, at 310 North 5^th Street, Boise ID 83701, provided that no amount shall be paid pursuant to this paragraph before the Intermountain Fair Housing Council has executed a written release of all claims, legal or equitable, that it might have against Defendants relating to the claims asserted in this lawsuit.

   V. PAYMENT TO ACCESSIBILITY IMPROVEMENT PROGRAM

   Within 180 days, defendants shall pay the total sum of FIVE THOUSAND DOLLARS ($5,000.00) to the Accessibility Improvement Program ("AIP") of the Idaho Housing and Finance Association, to be used by said association, after consultation with and approval of, the Intermountain Fair Housing Council, for the purpose of promoting handicap accessible housing construction and promoting the purposes of the Fair Housing Act in the Boise, Idaho and Ada County area.

   VI. CIVIL PENALTY

   Defendants shall pay the total sum of SIX THOUSAND FIVE HUNDRED DOLLARS ($6,500.00) to the United States as a civil penalty pursuant to 42 U.S.C. § 3614(d)(1)(C). Said sum shall be paid within sixty (180) days of the date of entry of this Decree by submitting a check made payable to the United States of America to counsel for the United States.

   VII. NOTICE TO THE PUBLIC OF DEFENDANTS'
   NON-DISCRIMINATION POLICY

   Defendants shall post and prominently display in the rental offices of all rental properties owned by Defendants, or in another prominent location at all rental properties without rental offices owned by Defendants, a sign no smaller than ten (10) inches by fourteen (14) inches indicating that all dwellings are available for rent on a nondiscriminatory basis. A poster that comports with 24 C.F.R. Part 110 will satisfy this requirement.

   For the duration of this Consent Decree, in all future advertising in newspapers, and on pamphlets, brochures and other promotional literature regarding Canal Street, 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, or the notation " Equal and Accessible Housing " or the commonly accepted handicap symbol.

   If Defendants build any new multi-family dwellings or units, Defendants will notify and assure the following organizations that the units are available and accessible under the Act.

   1. Intermountain Fair Housing Council, 310 North 5^th Street, Boise, ID 83701.
   2. Co-Ad, Inc., 4477 Emerald, Suite B-100, Boise, ID 83706.
   3. LINC, 2500 Kootenai Street, Boise, ID 83705.
   4. LINC Canyon County, 317 Happy Day Blvd., #130, Caldwell, ID 83605.
   5. Housing SW #2, 1108 West Finch Drive, Nampa, ID 83651.
   IX. REPORTING AND DOCUMENT RETENTION REQUIREMENTS
   1. Annually after the entry of this Consent Decree, Defendants, as applicable, shall submit to counsel for the United States the following:
      1. The number of any tenants or prospective tenants who requested retrofits, and the status of any retrofits, including: the date on which the retrofits were requested, and the date on which the retrofits were completed; and
      2. A report detailing the cost of retrofitting performed during the previous year to the public and common use areas and any interior unit at Canal Street.
   2. Defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any written administrative or legal complaint against Defendants or any employees or agents of Defendants, regarding equal opportunity in housing. Defendants shall also promptly provide the United States all information it may request concerning any such complaint.
   3. 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 Defendants, representatives of the United States shall be permitted to inspect and copy any records of Defendants 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.
   X. INSPECTION OF RETROFITS

   Upon reasonable notice to Defendants, representatives of the United States shall be permitted to inspect the retrofits performed at Canal Street to ensure compliance with this Consent Decree at any and all reasonable times; provided, however, that the United States shall endeavor to minimize any inconvenience caused by such inspections.

   XI. DURATION OF DECREE AND TERMINATION OF LEGAL ACTION

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

   The complaint in this action shall be dismissed with prejudice. The Court, however, shall retain jurisdiction for the term of this Consent Decree to enforce the terms of the Decree. The United States may move the Court to extend the duration of the Decree in the interests of justice.

   The United States and Defendants 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 Defendants to perform in a timely manner any act required by this Decree or otherwise to act in conformance with 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.

   XII. TIME FOR PERFORMANCE

   Any time limits for performance imposed by this Consent Decree may be extended by the mutual agreement of the United States and the relevant Defendants.

   XIII. COSTS OF LITIGATION

   Each party to this litigation will bear its own costs and attorney's fees associated with this litigation.

   So ORDERED this ______ day of ____________________ , 2002.

   _______________________
   United States District Judge

   Dated ____ day of August, 2002

   __________________________________
   D. Marc Haws
   Attorney for the United States of America

   Dated ____ day of August, 2002
   __________________________________
   Theresa L. Kitay
   Attorney for Defendants

   Dated ____ day of August, 2002

   __________________________________
   Gary L. Neal
   Attorney for Defendants

   
   

   Appendix A

   CORRECTIVE ACTIONS

   A. Public and Common Use Areas

   Accessible building entrance on an accessible route.

   Corrective Action: Raise up level of the concrete entrance walkway at each of the 20 ground floor units in Buildings 2410, 2450, 2460, 2470 and 2480 Canal Street, Boise, Idaho by pouring concrete to 1/2" below the threshold and sloping gently (1/4" in one foot maximum) out to the existing walkway.

   Accessible and usable public and common use areas-curb ramps.

   Corrective Action: Alter existing curb ramps to reduce slope to 8.3% or less. Alter the side flares to be sloped at 1:12 or less.

   Corrective Action: Stripe regular parking spaces adjoining curb ramps, or 36" wide access isle adjoining curb ramp and post compliant "No Parking" signs.

   Accessible and usable public common areas--Parking

   Corrective Action: Re-stripe existing accessible parking spaces as necessary to provide an 8'-0" wide parking space with an adjoining 5'-0" wide access aisle. If re-striping reduces the total number of parking spaces, check zoning ordinance or applicable regulations to verify minimum number of parking spaces required.

   Corrective Action: Re-mount existing sign on taller post so that bottom of sign is 6'0" above the ground.

   Corrective Action: Re-stripe existing parking spaces as necessary to provide an 8'-0" wide parking space with an adjoining 8'-0" wide access aisle adjoining the curb ramp serving Building 2430. If re-striping reduces the total number of parking spaces, check zoning ordinance or applicable regulations to verify minimum number of parking spaces required. On the same side of the parking lot that the office is in, install an accessible parking space sign as per applicable ordinance with "Van Accessible" sign below it on a post so that it is 6'-0" above finished ground to the bottom of the "Van Accessible" sign.

   Corrective Action: Covered Carport - When needed by a resident with disability, re-stripe at least two carport parking spaces as one accessible parking space with adjoining 5'-0 " wide access aisle. When installed, this space must be on the shortest possible route to one of the covered multi-family dwellings. Install an accessible parking space sign as per applicable ordinance on a post so that it is 6'-0 " above finished ground to the bottom of the sign. Inform handicap tenants that a double-wide space will be rented to them for the cost of one space and include this provision as a lease addendum.

   Corrective Action: For all North-South sidewalks (except the small one at the northend by the townhouse) widen all sidewalks to be compliant with HUD guidelines or install 6'-0" long wheelstops at each parking space adjacent to the parking spaces in front of all of the buildings in the complex but not at the row of parking spaces on the east side of the lot.

   Corrective Action: Widen the flat area at the top of each curb ramp to be at least 36" wide, or correct these ramps to comply with HUD guidelines where sidewalks are widened.

   Corrective Action: Alter sidewalk from the middle of Building 2420 to Rental Office to level it out to have no more than 2% cross slope.

   Common Use Laundry Room

   Corrective Action: Adjust closer so that force required to operate door is 8.5 pounds or less. Adjust also to retard closing action so that door takes at least 3 seconds to travel from 90 degrees open to 12 degrees from latch. Or, remove closer. This will also solve the lack of maneuvering clearance.

   Corrective Action: Remove landscaping nearest door latch and pave/install concrete pavers level with existing sidewalk. New paving must be at lest 12" wide x 60" long.

   Corrective Action: Remove knob and install lever hardware.

   Corrective Action: Remove existing threshold and install compliant threshold (1/4" maximum height square or 1/2" maximum height at 1:2 slope).

   Corrective Action: Purchase a "Reacher" assistive device from a durable medical equipment supplier and install a sign in the Laundry Room advising that it is available at the rental office.

   Corrective Action: Move washer nearest sink to opposite end of row of appliances.

   Overhead Hazards

   Corrective Action: Attach 4/6 cane rail and 4/4 post under outside of stair stringer at Buildings 2410, 2450, 2460, 2470, 2480 and 2490, or place an acceptable obstruction at these locations to comply with ANSI specifications.

   Trash Dumpsters

   Corrective Action: Install smaller, shorter trash containers beside the existing dumpsters. These shorter containers should have signs indicating that they are for use by persons with disabilities only.

   Mailboxes

   Corrective Action: As specifically requested by tenants, change unit numbers on mailboxes so that the mailboxes for the retrofitted accessible units are not in the top row of boxes, and coordinate any changes with the U.S. Post Office.

   Storage Units

   Corrective Action: Post a notice in the Rental Office that portable accessible storage units are available upon request, and provide them upon request.

   Rental Office

   Corrective Action: Replace knob with lever on inside and outside of entrance door to the Rental Office.

   Corrective Action: Raise up the level of the concrete entrance walkway by pouring compliant ramped concrete to 1/2" below the threshold at the Rental Office door.

   B. Retrofit Dwelling Units

   In addition to the existing "handicap unit" in Building 2490, eleven (11) other ground floor units in Building 2410, 2450, 2460, 2470, 2480, and 2490 Canal Street, including at least ground floor unit per building, shall be retrofitted and corrected as follows.

   Entrance Doors

   Corrective Action: Replace knobs with levers at the entrance doors of retrofitted units.

   Interior Doors

   Corrective Action: In 1Br/BA ⁽³⁾ widen interior doorways, replace doors and frames with 2'-10" wide door, and repair/refinish as needed. Swing new bathroom door out of the bathroom. Widen studio bathroom doorways, replace doors and frames with 2'-10" wide door and repair/refinish as needed. Swing new bathroom door out of the bathrooms.

   Corrective Action: Lower the threshold heights for entrance doors on all covered retrofit units to a maximum 1/2" level change with bevels, 3/4" beveled threshold at exterior doors, and a maximum 4" interior to exterior level change at patio doors that lead to decks with impervious surfaces.

   Light switches, electrical outlets, thermostats and other environmental controls.

   Corrective Action: As requested by any tenant or prospective tenant, in retrofitted 1BR/1BA move each non-compliant kitchen counter electrical wall outlet down 1 1/8" (may require tying off existing wires into junction box and extending new wires to new box located 1 1/8" minimum lower). Patch and paint.

   Corrective Action: As requested by any tenant or prospective tenant, in retrofitted 1BR/1BA move all other non-compliant electrical wall outlets up 7" (may require tying off existing wires into junction box and extending new wires to new box located 7" minimum higher). Paint and patch.

   Corrective Action: As requested by any tenant or prospective tenant, in retrofitted studio units move all non-compliant electrical wall outlets up 5". Paint and patch.

   Reinforced walls for grab bars.

   Tub: On an as "requested basis," in shower and tub units install adequate interior (through the closet) reinforcement for placement of grab bars. Reinforcing must withstand at least 250 pounds of force.

   In all retrofit units, install interior or exterior reinforcing along back wall of toilet or use "wing-it" bolts, at location shown in Fig. 3 of F.H.A.G., and alongside wall beside toilet at location shown in Fig. 3 of F.H.A.G., and securely anchor grab bars. Reinforcing must withstand 250 pounds of force.

   For the current "handicap unit" of Building 2490, if the tub already has a reinforced grab bar installed, then install an exterior reinforcement at the adjacent wall of a sufficient thickness to bring a grab bar to 18" from the centerline of the toilet.

   Kitchens

   Corrective Action: In retrofit studios, move the island/cabinets over at least 7" into the living room area, and replace vinyl floor covering.

   Bathrooms

   Corrective Action: In all retrofit dwelling units, both studios and 1BR/1BAs, retrofit doorways as noted-above, and re-design bathroom to be compliant by doing the following: Remove and reposition the lavatory sink to the wall on which the toilet is positioned, if a cabinet is used about the sink it must be removable. Remove toilets and replace them with compact bowls in order to provide the room depth and maneuverability required by HUD guidelines.

   APPENDIX B

   TENANT NOTICE OF RETROFITS FOR CANAL STREET APARTMENT

   Canal Street Apartments is dedicated to the principle of equal housing opportunity. The federal Fair Housing Act ⁽⁴⁾ requires that in newer apartment communities, ground-floor apartments have certain features of physical accessibility for people with disabilities.

   Due to a lawsuit filed by the United States Department of Justice, inaccessible aspects of the complex have been brought to our attention and we are currently in the process of correcting those violations. We welcome people with disabilities as residents and guests at Canal Street Apartments, and would like to make them as comfortable as possible. If you would like to make your apartment more accessible, Canal Street Apartments may be able to assist you by altering certain features of your apartment at no cost to you. Should any of the modifications require your temporary relocation, Canal Street Apartments will pay all reasonable relocation and housing expenses while the modifications are being made. Depending on your situation and the particular features of your apartment, the available alterations may include:

   • Widening the doors to the bathrooms, bedrooms, closets, and patios
   • Lowering patio thresholds and stoops
   • Providing more clear floor space in the bathrooms that is also better centered on the bathroom fixtures
   • Providing grab bar reinforcement in the bathrooms
   • In studio units, providing more clear floor space in the kitchen that is also better centered on the kitchen fixtures
   • Remounting the thermostat at a lower level

   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 request any of these modifications please fill out the enclosed form and return it to us.

   1. The Aulds, in their personal capacities and as owners of Canal Street Apartments, have entered into settlement with the United States on behalf of all named Defendants in this action.

   2. All submissions to the United States or its counsel shall be made to: Office of United States Attorney, U.S. Department of Justice, Attn: USAO 2001V00033, 877 W. Main Street, Ste. 201, Boise, ID 83702.

   3. "1 BR/1 BA" refers to retrofitted ground floor 1 bedroom/1 bathroom units. Other retrofitted ground floor units are designated "studios."

   4. 42 U.S.C. § 3601 et seq.

   ---

   Document Filed: September 12, 2002 > >