Housing And Civil Enforcement Cases Documents


UNITED STATES OF AMERICA,

Plaintiff,

and

GERALD OSBORN, and SUSAN
OSBORN PLUMMER,

Civil Action No. 02-CV-6548CJS

Plaintiffs/Intervenors,

CONSENT ORDER

v.

BLUEBERRY HILL ASSOCIATES,
L.P.; COSTICH ENGINEERING;
and PASSERO ASSOCIATES, P.C.;

Defendants.

I.     INTRODUCTION

A.    Background

1.    This Consent Order is entered between the United States of America, plaintiffs/intervenors Gerald Osborn and Susan Osborn Plummer (referred to herein as "the Osborns"), and Defendants Blueberry Hill Associates, L.P., Costich Engineering and Land Surveying, P.C., and Passero Associates, P.C. (referred to herein as "Defendants").

2.    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. Specifically, the United States' Complaint alleges that disability discrimination occurred in this case through the following actions: (a) failing to design and construct Blueberry Hill Apartments ("Blueberry Hill") with the features of accessible and adaptable design and construction required by 42 U.S.C. § 3604(f)(3)(C), and (b) discriminating, because of handicap, against the Osborns both in the rental of a dwelling, in violation of 42 U.S.C. § 3604(f)(1), and in the terms, conditions or privileges of rental of a dwelling, in violation of 42 U.S.C. § 3604(f)(2). The United States, the Osborns, and Defendants (hereinafter, "the Parties") agree that Blueberry Hill is subject to the accessible design and construction requirements of 42 U.S.C. § 3604(f)(3)(C).

B.    Defendants

3.    Defendant Blueberry Hill Associates, L.P. is a limited partnership organized under the laws of New York, that conducts business in New York.

4.    Defendant Costich Engineering and Land Surveying, P.C., is a professional corporation organized under the laws of New York, that conducts business in New York.

5.    Defendant Passero Associates, P.C., is a professional corporation organized under the laws of New York, that conducts business in New York.

6.    Defendants were responsible for the design, construction, and development of Blueberry Hill.

C.   Relevant Requirements of the Fair Housing Act

7.    The Fair Housing Act provides that, for non-elevator residential buildings with four or more dwelling units, all ground-floor units that are designed and constructed for first occupancy after March 13, 1991, are "covered units" and must include certain basic features of accessible and adaptable design to make such units usable by a person who has or acquires a disability. 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(B). All of the ground-floor units at Blueberry Hill were designed and constructed for first occupancy after March 13, 1991, and are located in non-elevator buildings containing four or more units. Thus, these ground floor units at the developments are "covered multifamily dwellings" within the meaning of the Fair Housing Act.

8.    The features of accessible and adaptable design required by the Fair Housing 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 the bathroom walls to allow the 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 designed and constructed, the "covered units" as well as the public and common use areas at Blueberry Hill do not include all of the features of accessible and adaptable design required by the Fair Housing Act.

D.   Consent of the Parties to Entry of this Order

9.    The Parties 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 further agree that the controversy should be resolved without further proceedings and without an evidentiary hearing.

10.     The Defendants deny that they have violated the law, and this Consent Order does not constitute any admission of liability on the part of any of the Defendants.

11.     As indicated by the signatures appearing below, the parties agree to entry of this Consent Order.

It is hereby ADJUDGED, ORDERED and DECREED:

II.   GENERAL INJUNCTION

12.    Defendants, and each of their officers, employees, agents, successors, and assigns, and all other persons in active concert or participation with them, are enjoined from discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 U.S.C. § 3604(f)(1) - (3).

III.   RETROFIT OF GROUND FLOOR UNITS AND
PUBLIC AND COMMON USE AREAS AT BLUEBERRY HILL

A.    Retrofits for Blueberry Hill

13.     The Parties recognize that Blueberry Hill does not meet the accessibility and adaptability standards of the Fair Housing Act and the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991) ("Guidelines"). To address these violations, Defendant Blueberry Hill Associates, L.P., shall take the corrective actions necessary to bring Blueberry Hill into compliance with the Fair Housing Act and the Guidelines, by completing the actions described in this section and Appendices A and B. (1) Defendant Costich Engineering and Land Surveying, P.C., shall contribute $166,000. towards the cost of these corrective actions. Defendant Passero Associates, P.C., shall contribute $508,000. towards the cost of these corrective actions.

14.     As soon as reasonably possible after entry of the Consent Order, but in any event not more than six (6) months from the date of the entry of this Consent Order, Defendant Blueberry Hill Associates, L.P., shall commence the retrofits that are set forth in Appendix A to the public and common use areas of Blueberry Hill and the retrofits will be completed by October 31, 2004. Defendant Blueberry Hill Associates, L.P., shall pay all expenses associated with these modifications that are not covered by the monetary contributions made by Defendant Costich Engineering and Land Surveying, P.C., and Defendant Passero Associates, P.C., that are listed in paragraph 13. Defendant Blueberry Hill Associates, L.P., and its contractors shall also attempt, in good faith, to minimize any inconvenience to the residents of Blueberry Hill.

15.     As soon as reasonably possible after entry of the Consent Order, Defendant Blueberry Hill Associates, L.P., shall commence the retrofits that are set forth in Appendix B to the ground floor units of Blueberry Hill and the retrofits will be completed not more than four (4) years and six (6) months from the date of the entry of this Consent Order. Defendant Blueberry Hill Associates, L.P., shall pay all expenses associated with these modifications that are not covered by the monetary contributions made by Defendant Costich Engineering and Land Surveying, P.C., and Defendant Passero Associates, P.C., that are listed in paragraph 13. Defendant Blueberry Hill Associates, L.P., and its contractors shall also attempt, in good faith, to minimize any inconvenience to the residents of Blueberry Hill.

16.    Within 30 days from the date of the entry of this Consent Order, Defendant Blueberry Hill Associates, L.P., shall provide each and every tenant who resides in a ground-floor unit with the notice, informing the tenant that: (1) the unit does not meet the accessible and adaptive design requirements of the Act; (2) the features of accessible and adaptive design can be retrofitted in the unit upon request; (3) the retrofits offered will be at no cost to the tenant; and (4) the scheduling of the retrofits will take into account the preferences and convenience of the tenant. This notice shall be substantially equivalent to the form of Appendix C. If Defendant Blueberry Hill Associates, L.P., receives a request from a tenant of a ground-floor unit to perform the retrofits, Defendant Blueberry Hill Associates, L.P., shall complete the retrofits within 21 days from the date on which the retrofits were requested, subject to the provisions of Paragraph 47. 17. Defendant Blueberry Hill Associates, L.P., shall enter into a contract with a neutral inspector approved by the United States to conduct on-site inspections of the retrofits that have been performed under this Order to determine if they have been completed in accord with specifications in Appendices A and B. The inspection of the retrofits that are set forth in Appendix A shall take place during November 2004, or as soon thereafter as practicable. At a minimum, inspections of the retrofits that are set forth in Appendix B shall take place during January 2005, January 2006, January 2007, January 2008, and August 2008, or as soon thereafter as practicable. Defendant Blueberry Hill Associates, L.P., shall give the United States at least three weeks notice of each inspection and shall give the United States an opportunity to have its representative present for the inspection.

18.     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 and Defendant Blueberry Hill Associates, L.P. If the inspection indicates that not all of the required retrofits have been made as specified in Appendices A and B, Defendant Blueberry Hill Associates, L.P., shall correct any deficiencies within a reasonable period of time as determined by the inspector, and shall pay for another inspection by the same inspector to certify the deficiencies have been corrected. This process shall continue until the inspector certifies that all of the necessary modifications have been made. Defendant Blueberry Hill Associates, L.P., 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. Upon reasonable notice to Defendant Blueberry Hill Associates, L.P., representatives of the United States shall be permitted to inspect the modifications made by Defendant Blueberry Hill Associates, L.P., in accordance with this Consent Order and the third party inspection reports provided for in this Order, to ensure compliance; provided, however, that the United States shall endeavor to minimize any inconvenience caused by such inspections.

19.     The sale or transfer of ownership, in whole or in part, of Blueberry Hill shall not affect Defendant Blueberry Hill Associates, L.P.'s continuing obligations to retrofit the properties as specified in this Consent Order. Should Defendant Blueberry Hill Associates, L.P. decide to sell or transfer ownership, in whole or in part, of Blueberry Hill or any portion thereof prior to the completion of the retrofits specified in Appendices A and B, it will, at least 30 days prior to completion of the sale or transfer, (a) provide to each prospective buyer written notice that Blueberry Hill is subject to this Consent Order, including specifically the obligations of Defendant Blueberry Hill Associates, L.P., to complete required retrofit work and to allow inspections, along with a copy of this Consent Order; and (b) provide to the United States, by facsimile and first class mail, written notice of its intent to sell or transfer ownership, along with a copy of the notice sent to each buyer, and each buyer's name, address and telephone number.

20.     The parties do not anticipate that the retrofits planned for the individual dwelling units at Blueberry Hill will cause any undue inconvenience or hardship to residents. However, in the event a resident of a unit scheduled to undergo such retrofit does incur undue inconvenience or hardship (defined as a required dislocation from the unit for more than 24 hours consecutively), Defendant Blueberry Hill Associates, L.P., will pay such resident the applicable government per diem rate for food and lodging (2) for the local area for each day of undue inconvenience or hardship. Such payment shall be made prior to the commencement of any retrofit work on the resident's unit, so that the resident can use the money to obtain alternative living accommodations while dislocated.

21.    Defendant Blueberry Hill Associates, L.P., may not charge any additional rent, deposit or other fee for the units in which retrofits are implemented solely because of the contemplated or completed retrofits.

IV.   NON-DISCRIMINATION IN FUTURE DESIGN AND CONSTRUCTION

22.     For the duration of this Consent Order, Defendant Blueberry Hill Associates, L.P., shall maintain, and provide to the United States upon request, the following information and statements regarding any covered, multifamily dwellings intended to be purchased, developed, built, designed, and/or engineered in whole or in part, by it:

(1)   the name and address of the project;

(2)   a description of the project and the individual units;

(3)   the name, address, and telephone number of the site engineer involved with the project;

(4)    a statement from the site engineer involved with the project acknowledging and describing his/her knowledge of and training in the requirements of the Fair Housing Act and the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. (the "ADA"), and in the field of accessible site design and certifying that he/she has reviewed the engineering documents for the project and that the design specifications therein fully comply with the requirements of the Fair Housing Act, the Guidelines, the ADA, and the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities ("ADAAG");

(5)    the name, address and telephone number of the architect involved with the project; and

(6)    a statement from the architect acknowledging and describing his/her knowledge of and training in the requirements of the Fair Housing Act and the ADA and in the field of accessible building and housing design and certifying that he/she has reviewed the architectural plans for the project and that design specifications therein fully comply with the requirements of the Fair Housing Act, the Guidelines, the ADA, and ADAAG.

If the engineering documents or architectural plans are revised, and the revisions could have any impact on the accessibility of the dwellings or complex, Defendant Blueberry Hill Associates, L.P., shall obtain and maintain (and provide to the United States upon request) a statement from the site engineer or architect, as applicable, that all specifications in the revised engineering documents or architectural plans, as pertinent, comply with the requirements of the Fair Housing Act, the Guidelines, the ADA, and ADAAG.

23.     For the duration of this Consent Order, Defendant Costich Engineering and Land Surveying, P.C., shall maintain, and provide to the United States upon request, the following information and statements regarding any covered, multifamily dwellings intended to be purchased, developed, built, designed, and/or engineered in whole or in part, by it:

(1)    the name and address of the project;

(2)    a description of the project and the individual units;

(3)    the name, address, and telephone number of the site engineer involved with the project;

(4)    a statement from the site engineer involved with the project acknowledging and describing his/her knowledge of and training in the requirements of the Fair Housing Act and the Americans with Disabilities Act, 42 U.S.C. §§ 12181 et seq. (the "ADA"), and in the field of accessible site design and certifying that he/she has reviewed the engineering documents for the project and that the design specifications therein fully comply with the requirements of the Fair Housing Act, the Guidelines, the ADA, and the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities ("ADAAG"); and

(5)    the name, address and telephone number of the architect involved with the project.

If the engineering documents are revised, and the revisions could have any impact on the accessibility of the dwellings or complex, Defendant Costich Engineering and Land Surveying, P.C., shall obtain and maintain (and provide to the United States upon request) a statement from the site engineer that all specifications in the revised engineering documents comply with the requirements of the Fair Housing Act, the Guidelines, the ADA, and ADAAG.

24.     For the duration of this Consent Order, Defendant Passero Associates, P.C., shall maintain, and provide to the United States upon request, the following information and statements regarding any covered, multifamily dwellings intended to be purchased, developed, built, designed, and/or engineered in whole or in part, by it:

(1)    the name and address of the project;

(2)    a description of the project and the individual units;

(3)    the name, address, and telephone number of the site engineer involved with the project;

(4)    the name, address and telephone number of the architect involved with the project; and

(5)    a statement from the architect acknowledging and describing his/her knowledge of and training in the requirements of the Fair Housing Act and the ADA and in the field of accessible building and housing design and certifying that he/she has reviewed the architectural plans for the project and that design specifications therein fully comply with the requirements of the Fair Housing Act, the Guidelines, the ADA, and ADAAG.

If the architectural plans are revised, and the revisions could have any impact on the accessibility of the dwellings or complex, Defendant Passero Associates, P.C., shall obtain and maintain (and provide to the United States upon request) a statement from the architect that all specifications in the revised architectural plans comply with the requirements of the Fair Housing Act, the Guidelines, the ADA, and ADAAG.

V.    COMPENSATION OF AGGRIEVED PERSONS

25.     Defendants shall pay (3) the total sum of SEVENTY-FIVE THOUSAND DOLLARS ($75,000) in monetary damages to the Osborns for damages they suffered as a result of Defendants' failure to design and construct Blueberry Hill in compliance with the Fair Housing Act and the Guidelines. (4) Defendants shall pay said money within 30 days of the date of entry of this Order, by sending a check payable in that amount to Gerald Osborn and Susan Osborn Plummer, care of their attorney, Laurie M. Lambrix, Esq. provided that no amount shall be paid pursuant to this paragraph before Gerald Osborn and Susan Osborn Plummer have executed and delivered to each of the Defendants a written release of all claims, legal or equitable, that it might have against Defendants relating to the claims asserted in this lawsuit. This written release shall be substantially equivalent to the form of Appendix D.

26.    Within 45 days after the date of this Order, Defendants shall deposit in an interest-bearing escrow account the total sum of TWO HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($225,000.00) for the purpose of compensating any aggrieved persons who may have suffered as a result of Defendants' discriminatory housing practices. (5) This money shall be referred to as "the Settlement Fund."

27.    Any interest accruing to the fund shall become a part of the fund and be utilized as set forth herein.

28.    Within 15 days of the entry of this Order, Defendant Blueberry Hill Associates, L.P. shall publish in the Rochester Democrat and Chronicle, the Notice to Potential Victims of Housing Discrimination ("Notice") at Appendix E informing readers of the availability of compensatory funds. The Notice shall be no smaller than three columns by six inches and shall be published on three occasions in the Rochester Democrat and Chronicle. The publication dates shall be separated from one another by at least 21 days, and at least two of the publication dates shall be a Sunday. Within 10 days of each publication date, Defendant Blueberry Hill Associates, L.P. shall provide the newspaper containing the Notice to counsel for the United States. Within 15 days of the entry of this Order, Defendant Blueberry Hill Associates, L.P. shall send a copy of the Notice to each of the organizations identified in Appendix F.

29.     Within 30 days of the entry of this Order, Defendant Blueberry Hill Associates, L.P. shall send by first-class mail, postage prepaid, a copy of the Notice to each past or present tenant of Blueberry Hill at their last known address. Within 45 days of entry of this Order, Defendant Blueberry Hill Associates, L.P. shall provide to counsel for the United States proof that the Notice has been sent. Nothing in this section shall preclude the United States from making its own efforts to locate and provide notice to potential aggrieved persons.

30.    Allegedly aggrieved persons shall have 120 days from the date of the entry of this Order to contact the United States in response to the Notice. The United States shall investigate the claims of allegedly aggrieved persons and, within 180 days from the entry of this Order, shall make a preliminary determination of which persons are aggrieved and an appropriate amount of damages that should be paid to the each such persons. The United States will inform Defendants in writing of its preliminary determinations, together with a copy of a sworn declaration from each aggrieved person setting forth the factual basis of the claim. Defendants shall have 14 days to review the declaration and provide to the United States any documents or information that they believe may refute the claim.

31.     After receiving Defendants' comments, the United States shall submit its final recommendations to the Court for approval, together with a copy of the declarations and any additional information submitted by Defendants. When the Court issues an order approving or changing the United States's proposed distribution of funds for aggrieved persons, Defendants shall, within 10 days of the Court's order, deliver to the United States checks payable to the aggrieved persons in the amounts approved by the Court. In no event shall the aggregate of all such checks exceed the sum of the Settlement Fund, including accrued interest. No aggrieved person shall be paid until he/she has executed and delivered to counsel for the United States the release at Appendix D. The United States shall make all reasonable efforts to satisfy out of the Settlement Fund all meritorious claims asserted during the applicable time frame by alleged aggrieved persons.

32.     In the event that less than the total amount in the fund including accrued interest is distributed to aggrieved persons, the Court shall distribute the remainder in a manner consistent with the purposes of this Consent Order and the Fair Housing Act. Defendants shall make a proposal to the Court regarding distribution of the remainder of the fund. When the Court issues an order approving or changing the proposed distribution of funds, Defendants shall distribute the funds in the manner directed by the Court within ten (10) days of the Court's determination.

33.     Defendants shall permit the United States, upon reasonable notice, to review any records that may facilitate its determinations regarding the claims of alleged aggrieved persons.

VI.    CIVIL PENALTY

34.     Defendants shall pay the total sum of THREE THOUSAND DOLLARS ($3,000) to the United States as a civil penalty pursuant to 42 U.S.C. § 3614(d)(1)(C). Said sum shall be paid within 30 days of the date of entry of this Order by submitting to the United States a check made payable to the United States of America.

VII.   EDUCATIONAL PROGRAM

35.    Within 30 days of the entry of this Order, Defendants shall provide a copy of this Order to all their agents and employees involved in the design, construction, rental, or sale of covered multifamily dwellings and secure the signed statement from each agent or employee acknowledging that he or she has received and read the Order, and had an opportunity to have questions about the Order answered. This statement shall be substantially in the form of Appendix G.

36.     During the term of this Order, within 30 days after the date he or she commences an agency or employment with Defendants, each new agent or employee involved in the design, construction, rental, or sale of covered multifamily dwellings shall be given a copy of this Order and be required to sign the statement acknowledging that he or she has received and read the Order, and had an opportunity to have questions about the Order answered. This statement shall be substantially in the form of Appendix G.

37.     Defendants shall also make all reasonable efforts to ensure that they and any other employees and agents who have supervisory authority over the design and/or construction of covered multifamily dwellings have a copy of, are familiar with, and personally review, the HUD Guidelines and the HUD Design Manual. Defendants and all employees and agents whose duties, in whole or in part, involve the management, sale and/or rental of multifamily dwellings at issue in this case shall be informed of those portions of the Fair Housing Act that relate to accessibility requirements, reasonable accommodations and reasonable modifications.

38.     Within 90 days of the date of entry of this Consent Order, all employees and agents of Defendant Blueberry Hill Associates, L.P., whose duties, in whole or in part, involve showing, renting, or managing the multifamily dwellings at issue in this case shall undergo training on the Fair Housing Act. The training shall be conducted by an independent, qualified third party, approved by the United States, and any expenses associated with this training shall be borne by Defendant Blueberry Hill Associates, L.P. The training shall include instruction on the Fair Housing Act, with specific emphasis on discrimination on the basis of handicap. Defendant Blueberry Hill Associates, L.P., shall provide to the United States, within 30 days after the training, the name(s), address(es) and telephone number(s) of the trainer(s); copies of the training outlines and any materials distributed by the trainers; and certifications executed by all covered employees and agents confirming their attendance, in a form substantially equivalent to Appendix G.

39.    Within 90 days of the date of entry of this Consent Order, Defendants and all employees and agents whose duties, in whole or in part, involved supervisory authority over the development, design and/or construction of the multifamily dwellings at issue in this case shall undergo training on the design and construction requirements of the Fair Housing Act and the ADA. The training shall be conducted by a qualified third party, unconnected to Defendants or their employees, agents or counsel, and any expenses associated with this training shall be borne by Defendants. Defendants shall provide to the United States, within 30 days after the training, the name(s), address(es) and telephone number(s) of the trainer(s); copies of the training outlines and any materials distributed by the trainers; and certifications executed by all Defendants and covered employees and agents confirming their attendance, in a form substantially equivalent to Appendix G.

VIII.    NOTICE OF DEFENDANTS' NON-DISCRIMINATION POLICY

40.    For the duration of this Consent Order, in all future advertising in newspapers, and on pamphlets, brochures and other promotional literature regarding Blueberry Hill or any new complexes that Defendant Blueberry Hill Associates, L.P., may develop or construct, Defendant Blueberry Hill Associates, L.P., 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.

IX.    NOTIFICATION AND DOCUMENT RETENTION REQUIREMENTS

41.     One hundred (100) days after the date of entry of this Consent Order, Defendants shall submit to the United States an initial report regarding the signed statements of Defendants, employees and agents who have completed the training programs specified in Section VII of this Consent Order. Thereafter during the term of this Order, Defendants shall, on the anniversary of the entry of this Order, submit to the United States a report containing the signed statements of new employees and agents that, in accordance with Section VII of this Consent Order, they have received and read the Order, and had an opportunity to have questions about the Order answered.

42.     Defendants shall advise the United States in writing within 15 days of receipt of any written administrative or legal fair housing complaint against any property owned, managed, or against any employees or agents of Defendants working at or for any such property, regarding discrimination on the basis of disability, or regarding retaliation, in housing. Upon reasonable notice, Defendants shall also provide the United States all information it may request concerning any such complaint. Defendants shall also notify the United States in writing within 15 days of the resolution of any such complaint.

43.     For the term of this Consent Order, Defendants are required to preserve all records related to Blueberry Hill and to all properties referred to in Section IV. Upon reasonable notice to 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 Defendants' control 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 Defendants from such inspections.

X.    DURATION OF ORDER AND TERMINATION OF LEGAL ACTION

44.     This Consent Order shall remain in effect for five (5) years after the date of its entry. By consenting to entry of this Order, the United States and Defendants agree that in the event that Defendants engage in any future 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).

45.    The Court shall retain jurisdiction for the duration of this Consent Decree to enforce the terms of the Decree, after which time the case shall be dismissed with prejudice. The United States may move the Court to extend the duration of the Order in the interests of justice.

46.    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.

XI.   TIME FOR PERFORMANCE

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

XII.     COSTS OF LITIGATION

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

XIII.    COUNTERPARTS

49.    This Consent Order may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute the same instrument.

SO ORDERED this _________ day of _________________________ , 2004.


Agreed to by the parties as indicated by the signatures appearing below:


Defendant Blueberry Hill
Associates, L.P.
:
President


____________________________
BLUEBERRY HILL
ASSOCIATES, L.P.
80 West Main Street
Rochester, NY 14614
By:
BERNARD J. IACOVANGELO
Managing Partner


Defendant Costich Engineering and
Land Surveying, P.C.:


____________________________
COSTICH ENGINEERING AND
LAND SURVEYING, P.C.
217 Lake Avenue
Rochester, NY 14608
By:

MARK R. COSTICH
President


Defendant Passero Associates, P.C.:


____________________________
PASSERO ASSOCIATES, P.C.
100 Liberty Pole Way
Rochester, NY 14604
By:
GARY W. PASSERO
President


For the United States:

R. ALEXANDER ACOSTA
Assistant Attorney General


____________________________
STEVEN H. ROSENBAUM
Chief
JEANINE M. WORDEN
Deputy Chief
KEVIN M. CREMIN
Trial Attorneys
U.S. Department of Justice
Civil Rights Division
Housing and Civil
Enforcement Section
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Phone: (202) 305-1323
Fax: (202) 514-1116
kevin.cremin@usdoj.gov


For Plaintiffs/Intervenors:


___________________________
LAURIE M. LAMBRIX
Monroe County Legal Assistance
Corp.
Fair Housing Enforcement Project
80 St. Paul Street, Suite 700
Rochester, NY 14604
(585) 325-2520


Link to Appendices A - G

1. HUD regulations provide that "[a] public or common use area that complies with the appropriate requirements of ANSI A117.1-1986 or a comparable standard is accessible." See 24 C.F.R. 100.201 (2002). HUD interprets "comparable standard" to mean a "standard that affords handicapped persons access essentially equivalent to or greater than that required by ANSI A117.1." See 54 Fed. Reg. 3243 (Jan 23, 1989). Should Defendants elect to follow a standard other than ANSI for making the public and common-use areas accessible, they will inform the United States in writing of the standard. Such standard must provide access that is "essentially equivalent" to or "greater" than ANSI A117.1 (1986).

2. Alternatively, Defendant Blueberry Hill Associates, L.P., may devise a plan to provide for the lodging of such residents in some other reasonable manner, provided that such a plan is approved in advance by the United States.

3. If any of the payments required under this Order are made after the prescribed time, for whatever reason, such payments shall include interest from the prescribed time of payment, 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.

4. The amounts to be paid by the Defendants are as follows: Blueberry Hill Associates, L.P., $30,000.; Costich Engineering and Land Surveying, P.C., $22,500.; and Passero Associates, P.C., $22,500.

5. The amounts to be paid by the Defendants are as follows: Blueberry Hill Associates, L.P., $86,000.; Costich Engineering and Land Surveying, P.C., $69,500.; and Passero Associates, P.C., $69,500.


Document Entered: February 18, 2004 > >
Updated August 6, 2015

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