Are You Tired of Being Stuck in the Weeds?

“I have so much going on that I can’t seem to make headway on anything. And then there is another fire that needs tending to, and another one after that. I never seem to have a chance to get to the really important things I have to do. I go home at the end of the day exhausted, only to wake up and do it all over again.”

Sound familiar? I think at one time or another we have all had these thoughts. I hear it every week from our multifamily clients and, if truth be told, my staff and I have felt this way as well. We all feel “called” to live lives of greater meaning and significance. This idea entices each of us to strive to meet the goal of checking off everything on our daily to-do lists. When we successfully complete a task, we feel energized and invigorated, but when we procrastinate or resist, we feel tired, overwhelmed, and frustrated. The problem is that we sometimes realize we have strayed off the path to success only when we find ourselves stuck in the weeds. Here we become stagnant and increasingly irritated with ourselves, our lives, and everyone and everything around us.

The struggle we are really talking about here is the ongoing battle against RESISTANCE. Resistance rears its ugly head when we face something that we fear will lead to pain or discomfort. Unexpected expenses we did not budget for because of the bliss of living unaware of existing issues around us, suddenly become looming dangers that cause us to instinctively run in the other direction. This is a situation a lot of owners and management personnel face, due to the simple fact that they trusted someone else to design and build their properties in compliance with all the applicable federal regulations. In most cases, the individuals hired have little or no formal accessibility training and therefore construct properties that are immediately or eventually noncompliant. Unfortunately, owners and property managers sometimes don’t realize this until they are suddenly facing lawsuits, fines, penalties, and even a potential loss of their tax credits!

When beginning a new project, an owner often resists any circumstance that could cause him to go over budget. In the case of accessibility, the owner may initially choose to ignore the high probability of noncompliance rather than foregoing the expense of engaging proactively with accessibility professionals. In this situation, the immediate fear of blowing the budget trumps the potential fear of noncompliance issues that may or may not occur in the future. The owner allows himself to be convinced that this is the best decision for his business. Unfortunately, as previously mentioned, the owner’s trust is misplaced and this often leads to extreme costs in litigation down the road.

Fearful resistance can cause us to seek safety in things that are actually detrimental to us. We trade risks that promise benefits in the long-term for rewards that guarantee satisfaction and comfort now. Over the last 3 years, there have been plenty of headlines in the news illustrating this point as it specifically relates to accessibility.

Let’s look at the timeline below:

• On October 5, 2017, the Department of Justice (DOJ) Accessibility Initiative was announced.
• On December 27, 2017, the National Council of State Housing Agencies (NCSHA) Board of Directors announced 46 New Best Practices. Nearly 10% of the items listed directly relate to accessibility. Interestingly, four of the items outlined by NCHSA were almost identical to some of the items identified in the DOJ’s Accessibility Initiative.*
• *In response to these documents, we have had many State Housing Finance Agencies request draft QAP language from our company. We believe (and are now seeing evidence to support) that choosing to approach accessibility proactively by revising QAPs is the best way to begin educating about and alleviating accessibility issues.
• On November 21, 2018, the DOJ settled an $11.3 million Fair Housing Act and Americans with Disabilities Act lawsuit against Mid-America Apartment Communities, Inc. and Mid-America Apartments, L.P. This was done to address allegations that the property owners involved failed to build 50 of their apartment complexes with accessible features for persons with disabilities in six US states and in the District of Columbia.
• On February 21, 2019, the DOJ filed a lawsuit in Galveston, Texas. The unique thing about this case is that half of the sixteen apartment buildings in question were built prior to March 13, 1991, meaning they are not at issue in this lawsuit. The remaining eight buildings, however, are the subjects of scrutiny here. The lawsuit alleges that defendants, Galveston Portfolio and Design Team, failed to design and construct an eightbuilding addition and associated rental office at the Seasons Resort in a way that made them accessible to persons with disabilities according to the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA).
• On May 9, 2019, the DOJ filed a lawsuit against Miller-Valentine, alleging that the owners and developers engaged in disability-based discrimination in 82 apartment complexes over 13 states. This is the most current case addressing a company’s failures to engage proactively with accessibility.

You are probably aware that the False Claim Act case against the City of Los Angeles (LA) is still in litigation, after the DOJ filed for treble damages against LA. Treble damages, according to United States law, is a term used when a plaintiff seeks to triple the amount of the actual or compensatory damages due to the severity of the legal violation. In the LA case, $1 billion was initially received to build affordable and accessible multifamily housing, meaning that this legal action brought the total value involved in the lawsuit to $3 billion.

Nancie-Ann Bodell, the Assistant Deputy Administrator of Multifamily Housing for Rural Development made mention of a “coming soon” announcement regarding 504 Transition Plans, both at the NCSHA Conference in San Francisco and the 2019 CARH Annual Meeting and Legislative Conference in Washington, DC. She said in both venues that accessibility was a priority for the agency and that a new Unnumbered Letter would be coming out the first of August 2019, reemphasizing that 504 Plans need to be updated every three years. Out-of-date plans will no longer be accepted. She went on to explain that the agency is aware of the DOJ Accessibility Initiative and the NSCHA new Best Practices, and that USDA was in full support of proactive engagement from all owners.

SPOILER ALERT! If your 504 plans are approaching three years old or more, consider factoring in the cost to update your plans in your upcoming budgets.

When considering accessibility, don’t choose to listen to the fearful voice of resistance that continually brings up all the “what if’s,” and causes you to cling to that which is familiar. Holding on to the familiar is often the first step off the path to success, as it usually leads to stagnation in false security. Remember, don’t get stuck in the weeds. Instead choose to bravely take risks that hold high potential for success both now and in the long-run. If resistance must be present in life, use it to your advantage. Don’t fearfully resist the future. Choose instead to resist fear of the future. If you have never spoken to an accessibility specialist about helping you design an Accessibility Action Plan for your portfolio, or significant time has passed since this conversation occurred, consider doing so today.

–Mark English, President of E&A Team, Inc.

Published in CARH News, July-August 2019 Edition