Under the act, we provided a reasonable timeframe of 30 months before the new construction provisions would go into effect. I want to just briefly go over what those provisions are. The fair housing new construction provisions only apply to new construction of multifamily housing to be first occupied after March 13, 1991. The housing covered under that is all multifamily housing of four units or more in elevator buildings, every unit. In buildings that do not have elevators, only ground floor units are covered. The statute stated that the public and common use portions of such dwellings must be readily accessible to and usable by handicapped persons; that all of the doors designed to allow passage into and within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and that all premises within such dwellings had to contain the following features. An accessible route into and through the dwelling unit, and other environmental controls must be in accessible locations, light switches as well. There must be reinforcements in the bathroom walls to allow later installation of grab bars at the choice and expense of the individual tenant or the resident of the housing. Grab bars are not part of the requirements under the Fair Housing Act. Usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about in the space-that is a very important component of the act to make sure that people in wheelchairs would be able to use all portions of the dwelling unit in which they resided. The Department of Housing and Urban Development published its final rule implementing the act on January 23, 1989. At that time, the Department declared its intention to provide further guidance on the design and construction of multifamily housing covered under the new construction provisions, which were under the regulations at 24 CFR 100.205(a). The final rule states that covered multifamily dwellings for first occupancy after that time shall be designed and constructed to have at least one building entrance on an accessible route unless it is impracticable to do so because of the terrain or unusual characteristics of the site. The burden of establishing impracticality because of the terrain or the unusual site characteristics is on the person or persons who designed or constructed the housing facility. During 1989 and further on, the National Association of Home Builders, in coordination with the National Coordinating Council on Spinal Cord Injury, of which-PVA is the only member which is also a member of the Consortium for Citizens with Disabilities. NCCSCI is primarily an organization whose purpose for existence is looking for a cure for spinal cord injury. It has not been involved in disability rights advocacy before and has not been involved, to my knowledge, in issues related to architectural design other than the PVA component. And again, no other member of the Consortium for Citizens with Disabilities was a member of the NCCSI coalition. Furthermore, there was a discussion at one point about working together with the home builders to provide guidance and to get a consensus document on the accessibility guidelines. That was something that was talked about, and it was known that PVA would be working on that. It happened that the first that the disability community saw of any drafts that NCCSI and NAHB were working on was provided not by Paralyzed Veterans of America, not by the National Coordinating Council on Spinal Cord Injury, but by a builder who contacted one of the folks in the coalition and said, "Do you guys know what is going on here?" The first draft that I remember seeing personally was one labeled draft No. 5. At that point in time, we met with PVA and asked them to look at what was going on and, again, there were attempts to try to work together, but there were extreme differences in the approach being taken by PVA and the accessible design ideas of the majority of architects that have been working in the accessible design field. One of those architects is Ronald Mace, who works with barrierfree environments, and I have included some of his comments on this early process in my testimony. Mr. Mace is currently the director of the Center for Accessible Housing, a federally funded center focusing on the accessibility of housing, and doing research on that issue. I would also urge the committee that if at some point the issue of the relative merits of the architectural standards does become an issue, that either Mr. Mace or Ed Steinfeld of the State University of New York, department of architecture would be much more qualified than I to address those technical detailed issues, and I am sure they-in fact, I have talked to Mr. Mace, and he will be glad to address these issues with you. One of the things that NAHB and NCCSCI did was, before HUD even issued its preliminary guidelines, offered to give their guidelines to HUD so that HUD would not have to go to the trouble of developing its own guidelines. HUD declined that offer, feeling that they should work on the guidelines in-house and take comments from a whole variety of viewpoints. Nevertheless, NAHB and PVA persisted on this matter, and when the guidelines were finally published in the preliminary form, they were in a format that included option one, which was the option developed by HUD and its own internal architects and design specialists, and then references to option two, which were the guidelines developed by NAHB. Commentors were invited to comment on both of those, along with a third option which only discussed retrofitting provisions, which would have been totally contrary, and ironically, I don't think that HUD saw that option three as a stand alone but rather as something that would be used in conjunction with option one or option two, even as several of the commentors-actually, I think, about 12 of them-said they preferred option three. It should be reiterated that the purpose of the guidelines was to assist builders and others in determining what would be a safe harbor under the act to reduce the possibility of litigation and to reduce the possibility of contentiousness on this. HUD received 568 comments. Of these, nearly 300 supported option one; 26 comments were received, according to HUD, in support of option two, and then 155 comments supported option one with some adaptations. So, HUD received comments from the public, from the professionals, from the building community, and all of those are a matter of public record. On September 7, HUD published a preliminary regulatory impact analysis in which they included designs done by an architect who was chosen from a list provided by NAHB and an architect that HUD chose. The differences in the designs that were done were less than $100 on the average, and the entire average total cost of design charges was around $400, I believe, actually, $388 per unit for HUD and $289 for the NAHB. In December, it was rumored that HUD had finished the guidelines but that they were being held up through the review process at OMB. One of our members of the coalition did, in fact, call OMB for the purpose of finding out the status of the regs, did not discuss the content of the regs. Let me just briefly now go over-and all of this is in more detail in my written comments-the differences in HUD's proposal to OMB and what was finally published March 6. HUD's proposal to OMB simplified the site and practicality guidelines which, again, I have written a description of that and, because of the complexity, won't go into much detail, but HUD removed one of the steps in the process, saying that you could look at an individual building and gage its accessibility purely through that. The other step of the process was taking contours of the different parts of the total site and getting a minimum number of units. HUD said, well, if you look at the individual buildings, you don't need to get this other step of the process. What came out in the final guidelines, instead of having the two-step process that originally was in option one, of looking at the entire site and looking at the individual buildings, became an either/or. You could either look at the entire site and then after that point do a scaled down version of looking at the individual building accessibility with a weakened standard, or you could do the individual building test, which had a stronger standard than the new option that was introduced in the final guidelines, which was never discussed as part of the original option one. The next change was at the point of requirement for accessible route into and through the unit. HUD in its submission to OMB said that it considered balconies and patios to be an essential part of a dwelling unit. Furthermore, it said that providing access was essential, especially on upper floors and buildings with elevators, because of the safety factor, if an individual was in an emergency, being able to access their balcony. I have included the text from the HUD proposal to OMB, and that is on page 6. In the final guidelines, instead, in justifying the allowance for builders to be able to put a drop of 4 inches at the balcony, HUD instead looked at the potential for water damage to the property. I happened to speak to Ron Mace last evening, just among other things telling him that we were including his letter in our testimony, and one of the things that he told me is that the center is involved in research on the issue of the potential for keeping water out with a three-quarter-inch threshold, and that they have had very promising results in terms of the technology which show that it is possible to do so. If the committee would like to be in touch with him to find out more about that specific research, he expressed his willingness to discuss that with you. Finally, usable kitchens and bathrooms. One of the really most egregious changes in the final guidelines was the exemption of all but one bathroom in dwelling units with multiple bathrooms from the usability standard. Attached to my testimony is a letter from Representative Edwards, Representative Frank, and Representative Fish of the original committee that developed the fair housing amendments expressing their intent that all bathrooms should have been covered and there should not have been an exemption. At this point, I just want to say that the theory behind the guidelines was to have a reasonable level of accessibility with modest cost, which we think were achieved in the HUD developed accessibility guidelines before they were revised by, apparently, OMB. The theory was to have the broadest scope, the largest number of units, with a modest design standard so that people with mobility impairments would have the range of options to live in that other folks have. An important component is also the fact that as people grow older and age in place, that they would be able to remain in that unit rather than having to look for an accessible unit. I thank you for your attention and will be glad to answer any questions. [The prepared statement of Mr. Mitchell follows:] |