On a project that had been constructed within the past few years, we were asked to perform a Property Condition Assessment (PCA) on a large multi-family development. It was designed and constructed under the most recent building codes, by a competent development team, an experienced architect, and seasoned contractors. Yet numerous issues of non-compliance were found. We performed a review of property from several angles, as different areas of the project are required to comply with the Americans with Disabilities Act (ADA), Federal Fair Housing Act (FHA) and Local Building Code. Several ground floor units at the stacked flats buildings were required to be accessible by local building code but were found to have their front doors accessed up a small flight of stairs – 2 to 4 treads – making these units non-compliant. Any resident needs to be able to get to their front door. From a civil engineering perspective, the site layout was efficient and compact, but a potential post-construction solution to this issue would have required wheelchair lifts at each building or large areas of additional ramps or sloped walkways. These can be expensive and difficult to accomplish on a tight site, even for such a limited change in elevation. This issue was found not only at the accessible units but also at all ground floor units covered by Federal requirements of the FHA. The primary entry at most ground floor units was not accessible, due to similar stairs at the entries to apartment buildings. When asked, the developer and architect indicated that the design intent was to consider patio sliding doors as the accessible entry, which is not an acceptable solution. Again, correcting the issue would involve lifts or extensive ramps at each affected building. In the dozens of units required to be accessible (not adaptable) by local building code, many issues were noted on the interiors: thermostats too high, restroom lavatories higher than allowable, water closets at non-compliant distances from the side wall, deep refrigerators that impede access through the kitchen, missing under-sink pipe insulation, etc. While these might seem minor, they resulted in a potential cost of several thousand dollars per unit to fix what should have been installed correctly from the start. In numerous units, the patio’s sliding glass doors did not provide the required clear width for access per FHA. Stair and ramp handrail extensions were constructed using out of date standard details left on the drawings. Again, we are forced to ask, how is it possible in the current climate and 25+ years after the passage of some of these laws, is a multifamily project built with significant noncompliant issues? Why? What is the problem? One issue is uneven enforcement. Compliance with the State or City Building Code is enforced through plan check and inspection on the local level, but accessibility required by overlapping federal standards are not a part of their review. The extent to which a local building inspector is familiar with these requirements varies greatly, but it is usually limited. There is something of an unfunded mandate for federal compliance, which is unfortunately enforced by lawsuit after the fact – a situation no building owner desires. Enforcement is therefore uneven – Public Agencies have, overall, neither the inclination nor funding to train appropriately to standards other than those required locally. A second issue is that the area of accessibility is complex, and there are a variety of interpretations, gray areas, and alternate means of compliance that can be argued to be appropriate – more than one way to solve the problem. Accessibility standards can seem to be constantly in flux, requiring expert help to interpret and understand what the current regulations require – what are the best practices. Checking the PSI of a batch of concrete is straightforward and scientific but determining whether a specific design solution is compliant can come down to fractions of an inch and involves interpretation and an assessment of risk when a condition isn’t quite “close enough”. Thirdly, disabled accessibility is still not well-understood by many architects, designers, and developers. Architects are trained as generalists, not all are focused on disabled accessibility in the way that the current legal and interpretive climate requires. Overlapping federal, state and local requirements do not trump each other in whole but must be complied with fully down to each area, element, or measurement. Meeting one standard does not excuse one from meeting other applicable standards. Recommendations: What does one do to protect against findings like these? Who is responsible, and who pays to mitigate risks like these? There are several recommendations that can start early in the development process. Get a specialized disabled accessibility Preconstruction Project Review prior to construction, while the drawings are in the DD and CD phase. Multiple rounds of review may be appropriate, with issues follow-up and correction with the design and development team. Contract with an experienced, qualified/certified reviewer for specialized disabled accessibility review during construction, to catch issues before they are set in stone. Compare their findings with legal counsel in gray areas, to analyze risks and address issues of non-compliance before they become a factor in a disposition. Set up document retention policies for Quality Control Inspectors. Follow up on all services included in the contract. Make sure raw photos are available for future review. Document retention policies for the developer are important as well, involving accurate as-builts, warranties, and so forth. This experience also highlights the importance of multi-team member PCA during due diligence. We recommend the use of several experts rather than just one generalist on site. A superficial look at the project or rubber-stamping a speedy commodity report may not provide the level of review a buyer would need to daylight issues like the above. |
