Perfect is the Enemy of Good

François-Marie Arouet, whose pen name was Voltaire, was a French writer, historian, and philosopher in the 1700s. Voltaire, known for his wit, was an outspoken advocate of civil liberties. When Voltaire coined the phrase “perfect is the enemy of good”, I am quite sure he was not thinking about the imperfections of two by fours, sheetrock, and accessibility regulations. But “perfect is the enemy of good” aptly describes the state of the nation’s current stock of multi-family housing and how we ended up here.

Every year, the multi-family housing industry is subject to scores of court cases filed by the U.S. Department of Justice (“DOJ”), the U.S Department of Housing and Urban Development (“HUD”), advocacy groups, and individuals with disabilities, seeking millions of dollars for
violations of federal accessibility regulations set forth in Section 504 of the Rehabilitation Act of 1973 (“Section 504”), the Americans with Disabilities Act (“ADA”), and the Fair Housing Act.

Let’s look at one of the most visible examples from this past year’s headlines. In August 2016, in settlement of a lawsuit brought by three non-profit disability and fair housing advocacy groups against the City of Los Angeles for failure to meet federal accessibility standards in the City’s multi-family housing units, the City of Los Angeles agreed to spend an average of $20 million annually over the next ten years to rehab 2,655 of its 4,000 housing units. Independent Living Center of Southern California, et al. v. The City of Los Angeles, et al., U.S. District Court, Central District of CA, No. 2:12-cv- 000551-FMO- PJW. In addition to the $200 million the City of Los Angeles agreed to spend to rehab the units, the City also agreed to pay $4.5 million to the non-profit organizations that filed the lawsuit, up to $1 million in court costs, and up to $20 million in attorneys’ fees. A separate lawsuit against the City of Los Angeles and the CRA/LA (formerly the Community Redevelopment Agency of the City of Los Angeles) and in which the United States intervened, centering around the same housing units and alleging that the City of Los Angeles and the CRA/LA fraudulently obtained millions of dollars in housing grants from the U.S. Department of Housing and Urban Development by falsely certifying that the money was being spent in compliance with federal accessibility laws, is still pending. United States ex rel. Ling, et al. v. City of Los Angeles, et al., U.S. District Court, Central District of CA, No. CV-11-00974.

These are real cases brought by the DOJ, HUD, and accessibility advocate groups that have resulted in multi-family housing properties being found out of compliance with federal accessibility laws and being fined anywhere from $350,000 to $225 MILLION dollars!  So why are so many properties not in compliance with the federal accessibility laws? Are these newly enacted laws that developers and property owners don’t know about? Are these newly enacted laws that perhaps developers and property owners have not had a chance to implement?
NO. These federal accessibility laws have been in effect for over TWENTY-FIVE YEARS. As the founder and president of a company that specializes in accessibility consulting and inspections, and has worked in all fifty states and U.S. Territories for the last twenty-five years, I have concluded that while going out and inspecting properties for accessibility compliance is a good thing and a first step, it simply is not enough.

This realization set me on a deep introspective journey to understand how and why, in 2017, the multi-family housing industry still fails to meet accessibility standards that have existed for over twenty-five years, and how we begin to correct this failing.  In my mind, we, as an industry, have set ourselves up for failure from the very beginning by setting out to design, build, and develop our properties to only a minimum standard. What do I mean by a minimum standard? Do I mean that an architect, developer, contractor, job superintendent, or any of the many sub-contractors woke up one morning and thought “today I am going to design/build/or install this property so that persons who have disabilities cannot use or access it”? No, of course not. I believe that all of us in our industry want to make our properties such that persons with disabilities can use and enjoy the properties in the same way that persons without disabilities can use and enjoy the properties.

What I mean when I say that we design/build/install to a minimum standard is that when planning a property, we allow so little deviation in each stage of the construction process that if any trade deviates, even by the smallest margin, then the end standard cannot be physically met. This process starts with the architect who initially designs the plans for the property. We see it over and over again. The architect, more often than not, does not take into account the real-world conditions experienced during the construction phase. Architects draw the plans in a sterile environment on their computers. They develop a set of plans with the expectation that the construction materials will
be “perfect” and the environmental and construction conditions will be “perfect.” But this simply is not the case. Two by fours often are imperfect; lumber is not straight; sheetrock is not perfect; and the ground shifts, freezes, and thaws. Multi-family properties are built over a period of time, with imperfect building materials, and in ever-changing weather conditions. Defects in the building materials and aberrations in the weather are not only possible but are in fact, probable and should be planned for from the beginning. Further still, most architects are not trained in Section 504 or Fair Housing Act accessibility standards. For the most part, they learn only the accessibility standards set forth by the ADA for places of public accommodation. So, while we start our projects with the intent of making our properties accessible, in the end, we are left wondering why our properties are not accessible and where things went wrong.
So how do we go about fixing this problem? I believe, and am committed to, establishing a set of accessibility best practices threshold requirements to ensure compliance with all governing accessibility regulations. This is a multi-part plan that starts with EDUCATION-education from the top down.

To quote that great line in All the President’s Men, “follow the money.” So first, let’s assume that 100% of the multi-family properties built in the country are financed by some type of lending institution. We need to bring all lending institutions, such as the state housing finance agencies, banks, and mortgage institutions on board with knowing, understanding and implementing the accessibility best practices threshold requirements. For their role, state housing finance agencies should require, as part of their Qualified Allocation Plans (“QAPs”), that each new construction and rehab project has the development team attend a mandatory live accessibility training covering all the accessibility requirements for Section 504, the Fair Housing Act, and the ADA. This training ideally would last a minimum of five hours to adequately cover all the required topics. The development team would include the architects, developers, owners, contractors, job superintendents, and all sub-contractors for all trades that affect the accessibility of the property in any way (i.e. grading, concrete, framing, electricians, plumbers, sheetrock, cabinetry, etc.). This required accessibility training should be written into the contract for service.

Second, the lending institutions also should require that all new, and yes, rehab properties as well, have a complete Accessibility Plan and Specification Review performed by an accessibility specialist. Third, the lending institutions should require that all new and rehab properties have a minimum of three on-site accessibility construction inspections performed by an accessibility specialist.
These accessibility inspections would identify any accessibility deficiencies at the property. A clearance letter from the accessibility specialist would be required upon the project’s completion certifying that, as of the date of the letter, all accessibility deficiencies have been corrected, and the property is in compliance with all applicable federal, state, and local accessibility standards and regulations.

So, I can hear the nay-sayers already, “that is going to cost money,” “that is going to be too expensive,” or “we can’t afford that”. Or, as I so often hear, “I should not be punished because the regulations changed in midstream,” or, “I can’t keep up with all these changes.” These are NOT new laws; these accessibility laws have been in effect for over twenty-five years. There is NO excuse for our nation’s multi-family housing to be so woefully inadequate and inaccessible for our citizens with disabilities. And for those in our industry who only view accessibility in terms of money coming out your pockets, ask yourself how long can you let your properties remain inaccessible before you are hit with a lawsuit that financially ruins you?

I know this can work—I have seen it in action with my own clients. Some time back, one of my clients called me, at home, late at night, because he had just read about a developer that had an accessibility lawsuit filed against him. He said, “I want you to establish a plan of action for my company. I want to involve my architects, my construction company, and my management company. I want to EDUCATE everyone so we can identify our accessibility deficiencies and put a plan in place so our company doesn’t become the next headline. I want education seminars, I want plan reviews, I want accessibility construction inspections, and then I want you to come back at least every couple of years to identify all the accessibility issues, from the ground shifting, freezing, and thawing, that were not present when you did your last accessibility inspection. I don’t want to see my ‘life’s body of work’ go down the drain overnight.” We started the next morning putting this plan into action and we have seen a tremendous difference since that day. Was it easy? No. But when the owner of the company said “this is our new DNA,” and “this is our new process” it got everyone’s attention.

So to all those in the multi-family housing industry, I urge you to help take responsibility and hold our industry accountable. Together, let’s establish a plan of attack. Let’s EDUCATE ALL parties involved. Let’s involve the lending institutions, the architects, the construction companies, and the management companies. Let’s schedule accessibility education seminars, accessibility plan reviews, and accessibility construction inspections. Let’s have our properties re-inspected every few years to make sure that things such as ground shifting, freezing, and thawing are not making our properties inaccessible. Let’s make sure that as regular maintenance issues are being addressed, new problems are not being created. I know old habits die hard, but we can do this!

Written by Mark English & Scott P. Moore and Published in  CARH Newsletter, November, 2017