FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
VIRGINIA L. VANDERPOOL, V.L.V.
COMPANY, L.L.C., V.L.
VANDERPOOL COMPANY, INC., T&J
PROPERTIES, L.L.C., and
Case CIV-01- 0078-S-BLW
VIRGINIA L. VANDERPOOL, V.L.V.
COMPANY, L.L.C., and V.L.
VANDERPOOL COMPANY, INC.
PINNACLE ENGINEERS, INC.
______________________________________CONSENT ORDER BETWEEN PLAINTIFF UNITED STATES AND DEFENDANTS VIRGINIA L. VANDERPOOL, V.L.V. COMPANY L.L.C., V.L. VANDERPOOL COMPANY INC.,T&J PROPERTIES,L.L.C. and PINNACLE ENGINEERS,INC.
This Consent Order is entered between the United States of America and Defendants Virginia L. Vanderpool, V.L.V. Company, L.L.C., V.L. Vanderpool Company, Inc., T&J Properties, L.L.C. and Pinnacle Engineers, Inc. (referred to herein as "Defendants"). The Consent Order does not resolve any cross claim by Cross-Claimant, Virginia L. Vanderpool, V.L.V. Company, L.L.C. and V.L. Vanderpool Company, Inc. against Cross-Defendant Pinnacle Engineers, Inc. The cross claim by Virginia L. Vanderpool, V.L.V. Company, L.L.C. and V.L. Vanderpool Company, Inc. against Pinnacle Engineers, Inc. has been resolved by a separate agreement.
This action is brought by the United States to enforce the provisions of Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act), as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§3601-3619. It is brought on behalf of the Intermountain Fair Housing Council pursuant to Section 812(o) of the Fair Housing Act ("the Act"), as amended, 42 U.S.C. §3612(o), as well as pursuant to Section 814(a) of the Act, 42 U.S.C. §3614(a). The investigation by the United States showed that there were obstructions which protrude into the paths to ground floor apartments, paths to ground floor units with running slopes greater than 5% and cross slopes greater than 2%, steps at the front entry door of units, a unit with knob hardware, bathrooms and kitchens which lack adequate maneuvering space, no reinforcements in bathrooms for grab bars, and electrical outlets lower than 15 inches from the floor and thermostats higher than 48inches from the floor.
The United States' Complaint alleges that Defendants discriminated against persons with disabilities by failing to design and construct covered multi-family dwellings in Baycrest Village ("Baycrest") in accordance with subsection 804(f)(3)(C) of the Fair Housing Act ("the Act"), 42 U.S.C. §3604(f)(3)(C). The Defendants answered the Complaint and denied all allegations of violation of the Fair Housing Act (42 U.S.C. §3601, et seq.). Defendants have agreed to this Consent Order in settlement of disputed claims; Defendants do not admit any liability and have specifically denied same.
Baycrest is an apartment complex consisting of four buildings located at 2705/2709 Wildwood Circle and 2714/2718 Arlington Avenue, Caldwell, Idaho. Baycrest has 18 apartments located on the ground floor which are "covered multi-family dwellings" within the meaning of 42 U.S.C. §3604(f)(7)(B). The apartments and the common areas of Baycrest are subject to the requirements of 42 U.S.C. §3604(f)(3)(C).
Sometime after the design and construction of Baycrest, it was sold to Baycrest, LLC, who is now the sole owner of Baycrest. The United States has entered into a separate agreement with Baycrest, LLC, attached to this Consent Order as Appendix A, in which Baycrest, LLC has agreed to take certain actions to facilitate the retrofitting of Baycrest. Relevant portions of this agreement are referenced in this Consent Order.
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). The parties also agree that the claims of the United States 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 Order.
It is hereby ADJUDGED, ORDERED, and DECREED:
- 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 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
- Taking any other action that violates the federal Fair Housing Act, 42 U.S.C. §3601 et seq.
- RETROFIT OF GROUND FLOOR UNITS AND PUBLIC AND COMMON USE AREAS AND PAYMENTS TO THE INTERMOUNTAIN FAIR HOUSING COUNCIL
Defendants agree to take the corrective actions as specified herein, and Baycrest, LLC has agreed to take the corrective actions specified in the Settlement Agreement Between the United States and Baycrest LLC set out in Appendix A (hereinafter the "Agreement") which are also referenced in this Consent Order.
- As soon as reasonably possible after entry of the Consent Order but in any event not more than twelve (12) months from the date of the entry of this Consent Order, Defendants shall commence and finish the retrofits to the ground floor units and public and common use areas of Baycrest that are set forth in Appendix B (1) and shall do so in a workmanlike manner. The retrofit work is to be performed by a contractor approved by the United States and Baycrest, LLC. (2) Pursuant to the Agreement, the current owner of Baycrest, Baycrest LLC, agrees to allow these modifications to be made and to permit the Defendants access to Baycrest to perform these modifications. The Defendants shall pay all expenses associated with these modifications and both they and their contractors shall attempt, in good faith, to minimize any inconvenience to the residents of Baycrest.
- Defendants shall enter into a contract with an neutral inspector approved by the United States and Baycrest LLC to conduct on-site inspections of the retrofits that have been performed under this Order to determine if they have been (a) completed in accord with specifications in Appendix B, and (b) performed in a workmanlike manner. (3) The decision of the inspector as to whether or not the retrofit work is performed in accord with the specifications in Appendix B and in a workmanlike manner shall be final and binding on all parties. Defendants agree to perform this work to the satisfaction of the inspector and Baycrest, LLC also agrees to be bound by his decision. Approximately six months after entry of this Consent Order, the first inspection shall be conducted of retrofits to units and common use areas completed in this time period, and a second inspection conducted approximately six months thereafter of all subsequent retrofits to units and common use areas. Defendants shall give the United States at least three weeks notice of the inspections and shall give the United States an opportunity to have its representative present for the inspections. Baycrest, LLC agrees to allow the inspector and representatives of the United States access for these inspections upon reasonable notice. The inspector shall set out the results of each inspection, including deficits if any, in writing and shall send that report to the United States, Defendants and Baycrest, LLC. Defendants shall pay all of the inspector's costs associated with these inspections, and such payments shall be made without regard to the inspector's findings.
- Pursuant to the Agreement, should Baycrest, LLC decide to sell or to transfer ownership of Baycrest or any portion thereof prior to the completion of the retrofits specified in Appendix B, it will either: (a) allow all of the unfinished retrofit work to be completed and inspected prior to the sale or transfer; or (b) notify the prospective purchaser of its agreement with the United States, and require that the purchaser or transferee, as a condition of the sale or transfer, agree in writing to comply with all of Baycrest LLC's obligations under the Agreement.
- If an apartment is occupied at the time of its retrofit, the tenants of the apartment shall be paid $150.00 by Defendants to compensate them for inconvenience and expenses they may incur as a result of the retrofit work, said payments to be made at or before the work commences. Defendants shall make a lump sum payment of two thousand seven hundred dollars ($2,700.00) to Baycrest, LLC or its designee within thirty days of the entry of this Consent Order to cover these payments. Baycrest, LLC or its designee agrees to make these payments to the tenants prior to the commencement of the retrofit work on their apartment. Baycrest, LLC agrees to return any unused portion of the fund to Defendants at the end of the retrofit period.
- No later than 60 days after entry of this Consent Order, Defendants shall pay Baycrest, LLC five thousand dollars. ($5,000.00)in consideration for Baycrest, LLC allowing Defendants access to Baycrest to make the modifications agreed to herein.
- Defendants shall pay the total sum of three thousand dollars ($3,000) in monetary damages to Intermountain Fair Housing Council for damages allegedly suffered as a result of Defendants' alleged failure to design and construct the Baycrest in compliance with the Act. Defendants shall pay said money within 60 days of the date of entry of this Consent Order, by sending a certified check payable in that amount to Intermountain Fair Housing Council, 310 North 5th Street, Boise, ID 83701, provided that no amount shall be paid pursuant to this paragraph before IFHC 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 (Appendix C) and that release has been delivered to Defendants' counsel. (4)
- PAYMENTS TO ADDITIONAL AGGRIEVED PERSONS
- No later than five hundred and forty (540) days from the entry of this Consent Order, the United States shall inform Defendants of the identity of any additional, aggrieved persons, who may have suffered damages as a result of Defendants' alleged failure to design and construct Baycrest in compliance with the Act and the amount of compensation they are to receive. Defendants may comment on those determinations, and the United States agrees to take those comments into account. The United States shall make the final and unreviewable determination, however, as to the identity of aggrieved persons and the amount they are to receive subject only to the requirement that the total amounts they are to receive not exceed thirty thousand dollars ($30,000.00) in the aggregate. Within thirty (30) days after the United States initial determination, Defendants shall make the payments to aggrieved persons as directed by the United States (subject to changes made by the United States in response to comments by Defendants during the 30 day period). Defendants shall send payment to the aggrieved parties in the form of a cashier's check care of the United States, or as otherwise directed by the United States.
No person shall be paid until he or she has submitted to the United States a sworn declaration setting forth the factual basis of the claim.
- No amount shall be paid pursuant to this paragraph, however, before the recipient has executed a written release of all claims, legal or equitable, that he or she might have against Defendants relating to the claims asserted in this lawsuit, and that release has been delivered to Defendants' counsel.
- Nothing in this section shall preclude the United States from making its own efforts to locate and provide notice to potential aggrieved persons. The United States shall provide Defendants with the opportunity, however, to review and comment upon representative examples of documents seeking to identify possible victims. The United States agrees to take those comments into account but shall have sole and unreviewable discretion to decide the content of such documents.
- PAYMENT IN FURTHERANCE OF FAIR HOUSING
Within ninety (90) days from the date of the entry of this Consent Order, Defendant Pinnacle shall pay five thousand dollars ($5,000.00) to Samaritan House with the direction that it be used for the purpose of providing increased housing and/or residential accessibility for persons with disabilities in Idaho. The payment shall be by certified check payable to Samaritan House. (5)
- CIVIL PENALTY
Within ninety days of the entry of this Consent Order, Defendant Vanderpool shall pay the total sum of five thousand dollars ($5,000.00) to the United States as a civil penalty pursuant to 42 U.S.C. § 3614(d)(1)(C). Said sum shall be paid by submitting a certified check made payable to the United States of America to counsel for the United States. (6)
- EDUCATIONAL PROGRAM
- Within thirty (30) days of the date of entry of this Consent Order, the Defendant Pinnacle Engineers, Inc. and all of its licensed engineers, involved in the design and/or construction of covered multi-family dwellings shall be given a copy of: (1) this Consent Order; (2) a current version of HUD's Fair Housing Design Manual containing HUD's March 6, 1991 "Final Fair Housing Accessibility Guidelines," and (3) the 1986 edition of the American National Standard Institute's (ANSI) A117.1 standards and/or one of the one of the other published standards recognized by HUD as a safe harbor for compliance with design and construction requirements of the Fair Housing Act. Each licenced engineer subsequently retained by the Defendant during the term of this Order must comply with the above requirements within thirty (30) days after the date he or she commences an employment, agency, or contractual relationship with the Defendant. Within ten (10) days of receiving the above-described materials, Defendant Pinnacle Engineers, Inc. shall submit a signed Employee Fair Housing Acknowledgment Form (Appendix D) to counsel for the United States.
- Defendants Virginia L. Vanderpool, V.L.V. Company, L.L.C., V.L. Vanderpool Company, Inc. and T&J Properties, L.L.C. state that they are no longer involved in the business of developing, designing or constructing multi-family housing. In the event that either Defendant Virginia L. Vanderpool, V.L.V. Company, L.L.C., V.L. Vanderpool Company, Inc. and/or T&J Properties, L.L.C. becomes re-involved in the business of developing, designing and/or constructing multi-family housing, such Defendant and all supervisory employees, involved in the design and/or construction of covered multi-family dwellings shall complete the training specified herein prior to resuming involvement in such business and shall have the completion of the training certified in writing and shall promptly send a copy of the certification to Counsel for the United States. They shall be given: (1) a copy of this Consent Order; and (2) instruction on the requirements of the Act with a particular emphasis on the Act's design and construction requirements and their responsibilities and obligations thereunder. The instruction on the Act's design and construction requirements 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 relevant Defendant. Each new supervisory employee or site manager retained by the relevant Defendant during the term of this Order must comply with the above requirements within thirty (30) days after the date he or she commences an employment, agency, or contractual relationship with the Defendant. Within ten (10) days of undergoing the above-described educational program, the relevant Defendant shall submit to counsel for the United States a statement signed by the employee acknowledging having received this training and the date that training.
- NOTICE TO THE PUBLIC OF DEFENDANTS' NON-DISCRIMINATION POLICY
- If the Defendants build any new covered multi-family dwellings or units, prior to the sale or rental of any unit, Defendants will notify the following organizations that the units are available and accessible under the Act:
Intermountain Fair Housing Council, 310 North 5th Street, Boise, ID 83701
Co-Ad, Inc., 4477 Emerald, Suite B-100, Boise, ID 83706
LIFE, 223 Harrison, American Falls, ID 83211
LIFE, P.O. Box 86, Blackfoot, ID 83221.
LINC, 2500 Kootenai Street, Boise, ID 83705
LIFE, 2311 Park Avenue, Suite 7, Burley, ID 83318
LINC Canyon County, 317 Happy Day Blvd., #130, Caldwell, ID 83605
Disability Action Center, 1323 Sherman Ave., Suite 6, Coeur D'Alene, ID 83814
LIFE, P.O. Box 306, Fort Hall, ID 83203
LIFE, 2110 Rollandet Avenue, Idaho Falls, ID 83402
Disability Action Center - North West, 124 East Third Street, Moscow, ID 83843
Housing SW # 2, 1108 West Finch Drive, Nampa, ID 83651
- NOTIFICATION AND DOCUMENT RETENTION REQUIREMENTS
- Further in the event that either Defendant Virginia L. Vanderpool, V.L.V. Company, L.L.C., V.L. Vanderpool Company, Inc. and/or T&J Properties, L.L.C. become involved in the business of developing, designing or constructing multifamily housing during the duration of this Consent Order, such Defendant shall promptly notify Counsel for the United States that he/she has become re-involved in this business and the name and location of such business. Further, regarding any covered, multi-family dwellings to be developed, designed and/or built by them, alone or with others, 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 any 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 stating that he/she has reviewed such plans and that the plans include design specifications that comply with the requirements of the Act and Guidelines.
- During the duration of this Consent Order, Defendant Pinnacle Engineers, Inc. shall, regarding any covered, multi-family dwellings to be designed by them, submit to counsel for the United States the following information before the developer applies for the initial building permits: (1) the names and addresses of the builders and developers; (2) the name and address of the project; (3) the type of covered 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 civil engineering and/or design work performed by Pinnacle for the project complies with the requirements of the Act and the Guidelines.
- The Defendants shall advise counsel for the United States in writing within fifteen (15) days of receipt of any written administrative or legal complaint against them or any employees or their agents, regarding equal opportunity in housing. The Defendants shall also promptly provide the United States all information it may request concerning any such complaint.
- For the term of this Consent Order, the Defendants are required to preserve all records related to this Consent Order, for all properties designed, constructed, owned, operated, or acquired by them. Upon reasonable notice to the Defendants, representatives, the United States shall be permitted to inspect and copy any of their records bearing on compliance with this Consent Order at any and all reasonable times; provided, however, that the United States shall endeavor to minimize any inconvenience to them from such inspections.
- DURATION OF ORDER AND TERMINATION OF LEGAL ACTION
- This Consent Order shall remain in effect for five 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 Order to enforce the terms of the Order. The United States may move the Court to extend the duration of the Order 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 Order 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 Order 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.
- TIME FOR PERFORMANCE
- Any time limits for performance imposed by this Consent Order may be extended by the mutual agreement of the United States and the relevant Defendants.
- 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
Agreed to by the parties as indicated by the signatures of counsel below:
FOR THE PLAINTIFF UNITED STATES:
JOAN A. MAGAGNA,
TIMOTHY J. MORAN,
THOMAS J. KEARY,
Housing and Civil Enforcement Section
Civil Rights Division
Department of Justice
P.O. Box 65998
Washington, D.C. 20035-5998
FOR DEFENDANTS VIRGINIA L. VANDERPOOL, V.L.V. COMPANY, L.L.C., V.L. VANDERPOOL COMPANY, INC. and T&J PROPERTIES
Dillion, Bosch, Daw & Bock
225 North 9th Street, Suite 210
Boise Idaho 83702-5771
(208) 344-8990, ext 112
FOR THE DEFENDANT PINNACLE ENGINEERS, INC.
THERESA L. KITAY
Coughing & Kitay, P.C.
3091 Holcomb Bridge Road
Norcross, GA 30071
1. These plans are not intended to provide technical assistance as to how to comply with the Fair Housing Act for future construction. Such technical assistance can be found in the Fair Housing Accessibility Guidelines codified at 24 C.F.R. 100.205(c) and the Fair Housing Act Design Manual.
2. Defendants have chosen Richard Evans Construction and their subcontractors. The United States and Baycrest, LLC have agreed to this selection. If Richard Evans Construction is unable or unwilling to perform this work, Defendants shall use such contractor as approved by the United States and Baycrest LLC.
3. Defendants have chosen Joe Numbers of 7656 W. Bearcreek Court, Boise, Idaho 83704. Again, the United States and Baycrest, LLC have agreed to this selection. If Mr. Numbers is unable or unwilling to perform this work, however, Defendants shall use such inspector as approved by the United States and Baycrest, LLC.
4. Defendants shall fax photocopies of the transmittal letter and the check to counsel for the United States at 202-514-1116.
In addition if any of the payments required under this Consent Order are made after the prescribed time, for whatever reason other than Plaintiff or Intermountains failure to timely provide the release, such payments shall include interest calculated by the formula set forth in 28 U.S.C. § 1961. Payment of such interest shall be in addition to any other remedies available to the United States for delays in payment.
5. Defendant Pinnacle shall fax photocopies of the transmittal letter and the check to counsel for the United States at 202-514-1116.
6. This and all other correspondence with counsel for the United States as called for by this Consent Order shall be sent to Chief of the Housing & Civil Enforcement Section, Civil Rights Division, U.S. Department of Justice, 950 Pennsylvania Ave. NW, Washington, DC 20530 or as directed by the United States.
Document Entered: April 27, 2002 > >