U.S. Department
of Justice
Housing And Civil Enforcement Cases Documents
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
UNITED STATES OF AMERICA,
Plaintiff,
v.
WEST CREEK, L.L.C.; QUEENSBURY
VILLAGE, INC.; LINDER & COMPANY, INC.;
PETTINARO CONSTRUCTION CO., INC.;
ARCHITECTURE PLUS, P.A.; LANDMARK
ENGINEERING, INC.; HILLCREST
ASSOCIATES, INC; HOWARD L.
ROBERTSON, INC.; LAND TECH, L.L.C;
and BETHANY BAY HOME OWNERS
ASSOCIATION, INC.,
Defendants.
__________________________________________)
I. INTRODUCTION
A. Background1. This Consent Order is entered between the United States of America and Defendants West Creek, L.L.C.; Queensbury Village, Inc.; Linder & Company, Inc.; Pettinaro Construction Company, Inc.; Architecture Plus, P.A.; Landmark Engineering, Inc.; Hillcrest Associates, Inc.; Howard L. Robertson, Inc.; Land Tech, L.L.C.; ("Defendants"); and Bethany Bay Home Owners Association, Inc. ("Association"), a party added under Fed. R. Civ. P. 19(a) so that full relief may be granted.
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 Defendants discriminated against persons with disabilities by failing to design and construct covered multifamily dwellings with the features of accessible and adaptable design and construction required by 42 U.S.C. § 3604(f)(3)(C), including Rockwood Apartments ("Rockwood"), located at 100 Cindy Drive, Newark, Delaware 19702; West Creek Village Apartments ("West Creek"), located at 100 West Creek Village Drive, Elkton, Maryland 21921; and the Bethany Bay Resort Community ("BBRC"), a condominium community located in Sussex County near Bethany Beach, Delaware. The United States and Defendants ("the Parties") agree that these complexes are subject to the accessible design and construction requirements of 42 U.S.C. § 3604(f)(3)(C).
B. Defendants (1)
3. Defendant West Creek, L.L.C. is a Delaware corporation that conducts business in Delaware. It is the real estate development company that owns West Creek Village Apartments and that owned it during the time of its design.
4. Defendant Queensbury Village, Inc. is a Delaware corporation that conducts business in Delaware. It is the real estate development company that owns Rockwood Apartments and that owned it during the time of its design.
5. Linder & Company, Inc., is a Delaware corporation that conducts business in Delaware. It is the real estate company that developed BBRC and that continues to have an ownership interest in BBRC.
6. Defendant Pettinaro Construction Company, Inc., is a Delaware corporation that conducts business in Delaware. Pettinaro Construction Company, Inc. is the general contractor for Rockwood, West Creek, and BBRC.
7. Defendant Architecture Plus, P.A., is a Delaware professional services corporation that conducts business in Delaware. Architecture Plus, P.A. is the architectural firm that designed Rockwood, West Creek, and BBRC.
8. Defendant Landmark Engineering, Inc. is a Delaware corporation that conducts business in Delaware. Landmark Engineering, Inc. is the civil engineering firm for Rockwood.
9. Defendant Howard L. Robertson, Inc. is a Delaware corporation that conducts business in Delaware. Howard L. Robertson, Inc. performed some civil engineering work at West Creek and BBRC.
10. Defendant Hillcrest Associates, Inc. is a Delaware corporation that conducts business in Delaware. Hillcrest Associates, Inc. is the civil engineering firm for West Creek.
11. Defendant Land Tech, L.L.C., is a Delaware corporation that conducts business in Delaware. Land Tech, L.L.C. is the civil engineering firm for BBRC.
12. Defendant Bethany Bay Home Owners Association, Inc. represents the home owners at BBRC, including those who own condominiums that are "covered units" as that term is defined in paragraph 13, below. It is a corporation and has its principal place of business in Delaware. The Bethany Bay Home Owners Association, Inc. has been included as a defendant in this action solely because it is a necessary party for relief.
C. Relevant Requirements of the Fair Housing Act13. 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 who develops a disability. 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(B).
14. The accessible and adaptable design provisions of the Fair Housing Act require that for covered multifamily dwellings: (i) the public use and common use portions of such dwellings are readily accessible to and usable by persons with a disability; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by persons with a disability using wheelchairs; and (iii) all premises within such dwellings contain the following features of adaptive design: (I) an accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C). These features are referenced in this document as the "FHA accessible design requirements."
D. Violations at Subject Properties
15. Construction at Rockwood began in September 2000 and is continuing; certificates of occupancy began to be issued February 2001. When completed, Rockwood will comprise 400 units in multi-story, non-elevator buildings each having four or more apartment dwellings. Of these, 133 will be ground floor dwellings that are "covered multifamily dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(B).
16. Construction at West Creek began in May 1997 and is continuing; certificates of occupancy began to be issued February 1998. When completed, West Creek will comprise 474 units in multi-story, non-elevator buildings each having for or more apartment dwellings. Of these, 156 will be ground floor dwellings that are "covered multifamily dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(B).
17. The United States surveyed Rockwood and West Creek and identified failures to meet the FHA accessible design requirements. For example, the investigation showed significant and numerous barriers on the routes to the 66 ground floor dwellings then built at each complex. There is a step at almost every ground floor apartment primary entry door; the vast majority of these are 3 inches or more in height. At West Creek, the approach walks to six units have a second step, roughly as high. The maneuvering space immediately outside many primary entry doors slopes excessively (4% instead of 1%). None of the primary entrance doors has accessible hardware. There are cross slopes exceeding 2% on most of the routes to ground floor units; many are sloped 4%. There are also no sidewalks, i.e., accessible pedestrian routes, linking the public streets to the network of sidewalks that connect the units and common use areas within the complexes.
Doors within the ground floor units are much narrower than the 32" nominal clear width required by someone who uses a wheelchair. Routes into and through the units are inaccessible due to unbeveled interior thresholds much steeper than ½" at the primary entrance door and at the rear patio door. Additionally, the West Creek units have wood decks 3-1/8" below the units' floor levels, far greater than the ½" maximum change in level that can be negotiated by a person who uses a wheelchair.
The ground floor units at both West Creek and Rockwood lack sufficient clear floor space in bathrooms and kitchens. Nor is there any evidence that reinforcements have been placed in the bathroom walls to support the later installation of grab bars. Thermostat controls are mounted 61½ - 61-5/8" above the floor in the complexes' ground floor units - several inches beyond the 54" maximum side reach range for persons using wheelchairs. At the clubhouse and pool at each complex, entrances have approach walks with excessive running slopes and abrupt door thresholds, and the pool showers cannot be used by persons with disabilities because, among other things, they lack grab bars, a transfer seat, and a minimum 60" long wand hose; the interior showers also have a 5" high curb. The individual parking garages at both complexes are covered by accessibility requirements; at least 2% of the garages must be at least 14' 2" wide with a vehicular door at least 10' wide. None of the garages meets these specifications. Nor are the mail kiosks and refuse facilities accessible to persons with disabilities at West Creek or Rockwood.
18. Construction at BBRC began in 1991 and is continuing; the first certificates of occupancy were issued in April 1991. When completed, BBRC will include 380 condominium units in multi-story, non-elevator buildings each having four or more dwellings. Of these, 133 will be ground floor dwellings that are "covered multifamily dwellings" within the meaning of 42 U.S.C. § 3604(f)(7)(B).
19. The United States surveyed BBRC and identified failures to meet the FHA accessible design requirements. For example, the investigation showed significant and numerous barriers on the routes to the 117 ground floor dwellings then built. There are no sidewalks, i.e., safe, accessible pedestrian routes, linking the public street at the perimeter of the complex to any of the units or the units to public and common use areas. There are virtually no curb cuts from parking areas to the approach walks to covered units and amenities. There is a step at the primary entry door to over 90 of the 117 constructed units; the vast majority are 3 inches or more in height. None of the primary entrance doors has accessible hardware. There are cross slopes exceeding 2% on many of the routes to ground floor units.
Doors within the ground floor units are much narrower than the 32" nominal clear width required by someone who uses a wheelchair. Routes into and through the units are inaccessible due to unbeveled interior thresholds much steeper than ½" at the primary entrance door of three models and at interior thresholds of patio doors of all models. Additionally, one model has a wood deck up to 6" below the units' floor levels, far greater than the ½" maximum change in level that can be negotiated by a person who uses a wheelchair. The ground floor units lack sufficient clear floor space in bathrooms and kitchens. Nor is there any evidence that reinforcements have been placed in the bathroom walls to support the later installation of grab bars. Thermostat controls in all covered units are mounted 59-61" above the floor, several inches beyond the 54" maximum side reach range for persons using wheelchairs.
There is only one designated accessible, surface parking space provided in the entire complex. There are some 295 planned or constructed individual parking garages available for resident parking. At least 2% are required to be accessible; none is.
At the clubhouse, three of the six entrances have 3ï½½" steps and are on approach routes through grass. At the sales office, there are no accessible parking spaces nor curb cuts. The approach ramp has a top landing length (at 46") that is shorter than the 60" minimum length requirement, and the designated "accessible" entrance has a 2" threshold and abrupt level changes of 1" on the interior and 2" on the exterior. The lavatory in the public restroom has inadequate toe and knee space and no 60" diameter or "T" shaped wheelchair turning space.
At the golf course pro shop, the wooden ramp leading to the front door is situated in a gravel path and has a 2½" change in level at its bottom. There are no accessible routes to the tennis courts, picnic areas, or BBQ grills, which are situated in lawn. Mail kiosks and trash corrals are not served by accessible parking spaces or accessible pedestrian routes, but typically are surrounded by high curbs and adjacent roadway.
20. Defendants have agreed to bring Rockwood, West Creek, and BBRC into compliance with the Fair Housing Act, as set forth below. At all other covered multifamily dwellings designed and/or built by any of the Defendants for first occupancy after March 13, 1991, and in which that Defendant has an ownership interest at the time of the entry of this Consent Order, Defendants agree to take the additional steps which are also set forth below.
E. Consent of the Parties to Entry of this Order
21. 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.
22. 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
23. 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).
III. RETROFIT OF GROUND FLOOR UNITS AND
PUBLIC AND COMMON USE AREAS PREVIOUSLY INSPECTED
BY THE UNITED STATES AT ROCKWOOD, WEST CREEK,
AND BETHANY BAY RESORT COMMUNITY
24. The Parties recognize that Rockwood, West Creek, and BBRC do 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, Defendants jointly and severally agree to take the corrective actions necessary to bring the complexes into compliance with the Fair Housing Act and Fair Housing Accessibility Guidelines by completing the actions described in this section and Appendices A through F. (2) The Association's sole responsibilities are described in paragraphs 36 - 42. The obligations outlined in ¶¶ 26 - 44 do not apply to 15 BBRC and 36 West Creek covered units that the parties agree cannot be retrofitted to provide an accessible approach walk. 25. Accessible Building Entrances on Accessible Routes and Accessible and Usable Public and Common Use Areas: As soon as reasonably possible after entry of the Consent Order, but in any event not more than 270 days from the date of the entry of this Consent Order, Defendants shall commence and finish the retrofits to the building entrances, accessible routes, and the public and common use areas of Rockwood, West Creek, and BBRC set forth in this document and in Appendices A, C, and E. The Defendants shall pay all expenses associated with these modifications and shall attempt, in good faith, to minimize any inconvenience to the residents of Rockwood, West Creek, and BBRC.
26. Interior of Ground Floor Dwellings: Rockwood and West Creek: Standard Retrofits: As soon as reasonably possible after entry of the Consent Order, but in any event not more than one year from the date of the entry of this Consent Order, Defendants shall commence and finish the retrofits to the interior of the ground floor dwellings at Rockwood and West Creek that are set forth in this document and in Appendices D and B, respectively, even if there has not been a vacancy in those units.
27. The Defendants shall pay all expenses associated with these modifications and shall attempt, in good faith, to minimize any inconvenience to the residents of Rockwood and West Creek.
28. Interior of Ground Floor Dwellings at BBRC: Phase I Standard Retrofits: As soon as reasonably possible after entry of the Consent Order, but in any event not more than one year from the date of the entry of this Consent Order, Defendants shall make retrofits, as set forth in this document at Appendix F, to the interiors of ground level condominium units at BBRC that are not yet sold to individuals and/or are under construction as of the date of the entry of the Consent Order. During the same time frame, Defendants shall also make retrofits to ground level condominium whose owners request retrofits to their units pursuant to ¶¶ 29, 30, and 31, below.
29. The Defendants shall pay all expenses associated with these modifications and shall attempt, in good faith, to minimize any inconvenience to the residents of BBRC.
30. Within 30 days from the date of the entry of this Consent Order, Defendants shall provide a notice to each and every tenant at West Creek and Rockwood, and each owner at BBRC, who resides in a ground floor dwelling. Within that 30 days, Defendants shall also provide a list to the United States, in electronic format, if possible, of the names and addresses of persons to whom the notice was mailed.
- The notice shall inform the tenant/owner 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/owner; and (4) the scheduling of the retrofits will take into account the preferences and convenience of the tenant/owner. This notice shall be substantially equivalent to the form of Appendix G.
- If Defendants receive a request from a tenant/owner of a ground floor dwelling to perform the retrofits, Defendants shall complete the retrofits within 21 days from the date on which the retrofits were requested, with such deadline being subject to the provisions of ¶ 78.
- The notice to Rockwood residents Steven Mashington and Peter Mitchell will also offer these individuals, as an alternative to retrofits, the opportunity to move to newer, more accessible Rockwood units of their choice. Defendants shall pay the expenses of any such moves which shall occur at the convenience of these tenants but not less than 14 days after their election.
31. In the event a resident of a Rockwood, West Creek, or BBRC unit scheduled to undergo a modification incurs undue inconvenience or hardship (defined as a required dislocation from the unit for more than 24 hours consecutively), the Defendants will pay such resident the applicable federal government per diem rate for food and lodging 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.
32. Accessibility Enhancements: Defendants shall offer accessibility enhancements at Rockwood, West Creek, and BBRC, subject to the review and approval of the United States. The enhancements will be available for viewing by current and prospective residents in a way that effectively conveys their dimensions and utility (e.g., by walk through or a videotape of an occupied unit retrofitted with the enhancements; life size photographs of the features that may be inspected at the rental/sales offices; or, at Rockwood and West Creek, modification of some of the features of the permanent model units that are attached to the clubhouses (e.g., the installation of removal cabinetry under the kitchen sink). The accessibility enhancements and the means for graphically displaying them shall be available as soon as reasonably possible but no later than 12 months from date of the entry of this Order. Defendants have designated ANSI 4.21 and 4.32 and Guidelines Requirements 3-5, as the standard with which these accessibility enhancements shall comply.
33. The accessibility enhancements shall include, but not be limited to, removal of the cabinetry under the kitchen sink such that a person using a wheelchair can make a full forward approach to the sink in accordance with ANSI 4.32.5.5; either the removal of the oven unit such that a person using a wheelchair can make a full forward approach to the stove top in accordance with ANSI 4.32.5.6 plus the provision of a separate oven appliance (i.e., convection oven) or the alternative removal of the necessary cabinetry to allow a full parallel approach to the oven in accordance with ANSI 4.32.5.7. Regardless of whether the forward or parallel approach to the oven is provided, the current or prospective tenant shall be provided with pictures and measurement details of the alternative retrofit option for his/her apartment or condominium unit; accessible routes into and through the units in accordance with Guidelines Requirement 3 and 4; light switches, electrical outlets, thermostats, and other environmental controls in accordance with Guidelines Requirement 5; and accessible bathrooms in accordance with Guidelines Requirement 7, with inclusion of roll-in shower or other similar accessible bathing area in accordance with ANSI 4.21, and installation of grab bars surrounding the bathing and toilet areas in accordance with ANSI 4.21.4.
34. After the expiration of this Consent Decree, interior dwelling units at Rockwood, West Creek, and BBRC shall not be considered to comply with the Fair Housing Act's accessible design requirements unless these accessibility enhancements continue to be provided as described in this Order.
35. Accessibility Enhancements for Tenants/Owners: The Defendants shall provide all current and prospective residents with the option to view the accessibility enhancements as described in ¶¶ 32-33. Defendants will notify current tenants/owners in writing of how they may view and order the enhancements within 10 days of their availability under ¶ 32. Any current or prospective tenant/owner upon written request will be entitled to have an apartment with the appropriate number of bedrooms, or condominium unit, retrofitted to include the accessibility enhancements of his or her choice; such retrofits shall be completed as soon as possible but not later than 30 days after the request by the current or prospective tenant/owner. Defendants will not charge any additional rent, deposit, condominium fee, or other surcharge for the units in which retrofits are made. The rent for units at Rockwood and West Creek shall be the same as for equivalent units that do not have accessibility enhancements.
36. Interior of Ground Floor Dwellings at BBRC: Phase II Retrofits: Defendants shall establish a fund ("Accessibility Fund"), to be established and administered by the Bethany Bay Home Owners Association, Inc. ("Association"), to cover the cost of standard retrofits and accessibility enhancements that may be requested by future owners of BBRC ground level condominiums within 10 years of the date of entry of this Consent Order. Within eighteen months from the entry of this Order, or 90 days after the date of completion of requested unit retrofits at BBRC pursuant to ¶ 28, whichever comes first, Defendants shall submit to the United States proof that a $ 350,000, irrevocable, ten-year letter of credit has been established for this purpose, naming the Association as the beneficiary.
37. The Association shall contract with an entity (the Entity), to serve as the Association's agent for purposes of having retrofits made and other obligations of the Association under this Consent Order, and will provide to the United States the name, address, and telephone number of such Entity. In the selection of such Entity, the Association will give priority consideration to the property management firm designated by Pettinaro Construction Company, Inc.
38. The Entity shall administer the Fund and ensure that retrofits as described in Appendix F, and the accessibility enhancements, are made as requested by owners of ground level BBRC condominiums in order to bring those units into compliance with the requirements of the Fair Housing Act and Fair Housing Accessibility Guidelines. The Association will notify each new owner of such a unit that retrofits and accessibility enhancements are available, within 10 days of the earliest notice to the Association of the re-sale of such a unit. Notice shall be made to new owners in the manner described in ¶ 30 above, and compensation will be paid to those who elect retrofits and/or accessibility enhancements and who are inconvenienced as described in ¶ 31, above. The Association shall cooperate with the Entity to carry out the retrofit actions specified. The Accessibility Fund shall be solely administered by the Entity in a manner which maximizes accessibility for people with disabilities at Bethany Bay Resort Community.
39. Any costs incurred in connection with the administration of the Accessibility Fund shall be paid from the Accessibility Fund. The Entity shall determine whether the desired modification(s) falls within the scope of this Order and Appendix F, and the amount of money that will be allocated for such modification(s). The Entity shall disperse monies upon written request of owners on a first-come, first-served basis. The Association shall not be required to contribute any additional monies to the Accessibility Fund for purposes of retrofitting ground level condominiums pursuant to this Consent Order.
40. After the expiration of this Consent Order, interior dwelling units at BBRC shall not be considered to be compliant with the Fair Housing Act's accessible design requirements unless the Accessibility Fund continues to operate as described in this Order.
41. Inspections: Defendants shall enter into a contract with a neutral inspector approved by the United States ( "Inspector") 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 the specifications in this Order and Appendices A through F.
42. The inspection shall take place within 30 days of the completion of all of the retrofits to units and common use areas, or as soon thereafter as practicable. Defendants shall give the United States at least three weeks' notice of the inspection and shall give the United States an opportunity to have its representative present for the inspection.
43. The Inspector shall set out the results of each inspection, including deficits if any, in writing and shall send that report to Counsel for the United States (3) and Defendants. If the inspection indicates that not all of the required retrofits have been made as specified in Appendices A through F, Defendants 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. Defendants 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 Defendants, representatives of the United States shall be permitted to inspect the modifications made by Defendants in accordance with this Consent Order or 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.
44. Defendants 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.
45. Sale or Transfer of an Ownership Interest in Rockwood, West Creek, and BBRC: The sale or transfer of ownership, in whole or in part, of the Rockwood, West Creek, and/or BBRC complexes shall not affect Defendants' continuing obligations to retrofit the properties as specified in this Consent Order. Should Defendants decide to sell or transfer any ownership of Rockwood, West Creek, and/or BBRC, in whole or in part, or any portion thereof, prior to the completion of the retrofits specified in Appendices A through F, they will at least 30 days prior to completion of the sale or transfer: (a) provide to each prospective buyer written notice that the Rockwood, West Creek, and/or BBRC complexes are subject to this Consent Order, including specifically the Defendants' obligations 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 (202-514-1116) 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. This paragraph does not apply to the sale of individual condominium units at BBRC.
IV. SURVEYING OF COVERED UNITS AT ROCKWOOD, WEST CREEK, AND BBRC, AND OTHER MULTIFAMILY COMPLEXES, NOT
INSPECTED BY THE UNITED STATES
46. Defendants Pettinaro Construction Company, Inc.; Architecture Plus, P.A.; and West Creek, L.L.C. have continued to design and construct covered multifamily dwellings ("additional dwellings") at West Creek since the inspection of the United States on June 24-26, 2003. Defendants Pettinaro Construction Company, Inc.; Architecture Plus, P.A.; and Queensbury Village, Inc. have continued to design and construct additional dwellings at Rockwood since the inspection of the United States on June 24-26, 2003. Defendants Pettinaro Construction Company, Inc.; Architecture Plus, P.A.; and Linder & Company, Inc. have continued to design and construct additional dwellings at BBRC since the inspection of the United States on October 27-29, 2003.
47. Each of these Defendants agrees to take the following actions with regard to the additional dwellings at West Creek, Rockwood, and BBRC. Additionally, each Defendant named in this action agrees to take the following actions with respect to any other covered multifamily dwellings (other than Rockwood, West Creek, and BBRC) which that Defendant has designed and/or constructed for first occupancy after March 13, 1991 and in which that Defendant has an ownership interest at the time of the entry of this Consent Order ("other covered multifamily dwellings"):
- Such Defendant shall contract with one or more qualified architectural firms ("Surveyor(s)"), approved by the United States prior to such contract, to conduct on-site surveys at each of the other covered multifamily dwellings to determine those properties' compliance with the Fair Housing Act.
- The Surveyor(s) shall prepare a report specifying the scope, methodology and results of the surveys, as well as a description of any modifications deemed necessary for compliance with the accessibility provisions of the Fair Housing Act ("Report(s)").
- The Report(s) shall be furnished to the United States by each Defendant within six months of the entry of this Consent Order.
- The Parties to the Decree shall have 90 days following receipt of a Surveyor's Report to reach agreement on the retrofits to be performed at the property and the time periods for the performance of such retrofits. If the Parties to the Decree cannot reach agreement on the retrofits to be performed and the time periods for their performance, the matter shall be determined by the Court.
- Upon completion of the modifications specified in the Surveyor's Report for any given property, the Surveyor shall certify by on-site inspection that the modifications performed have been completed in accord with the specifications in the report. The post-modification on-site inspection shall take place within 30 days of the completion of retrofits to units and common use areas on any given property, or as soon thereafter as practicable. Each Defendant shall give the United States at least three weeks' notice of the inspection of each other covered multifamily dwellings, and shall give the United States an opportunity to have its representative present for the inspection of each property. Upon reasonable notice to Defendants, representatives of the United States shall be permitted to inspect the modifications made by Defendants in accordance with this Consent Order or the third-party Surveyor 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.
- Each Defendant shall pay all costs associated with the surveys, inspections, and modifications to each other covered multifamily dwellings, without prejudice to their ability to seek contribution or indemnification from other sources.
- In the event a resident of a unit scheduled to undergo such modification as required herein incurs undue inconvenience or hardship (defined as a required dislocation from the unit for more than 24 hours consecutively), these Defendants will pay such resident the applicable government per diem rate for food and lodging 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.
- For those other covered multifamily dwellings in which Defendants have any ownership or management interest at the time modifications are made, they 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.
- The sale or transfer of ownership, in whole or in part, of any of the other covered multifamily dwellings complexes shall not affect Defendants' continuing obligations to retrofit the properties as specified in this Section of this Consent Order. Should any Defendant decide to sell or transfer ownership, in whole or in part, of any of the other covered multifamily dwellings complexes or any portion thereof prior to the completion of the retrofits specified in the Surveyors' Report, it will, at least 30 days prior to completion of the sale or transfer, (i) provide to each prospective buyer written notice that the complexes are subject to this Consent Order, including specifically the Defendant's obligations to complete required retrofit work and to allow inspections, along with a copy of this Consent Order; and (ii) 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.
V. ACTIONS TO INCREASE THE SUPPLY OF
ACCESSIBLE HOUSING IN THE DELAWARE AREA
48. The parties acknowledge that the corrective retrofits in Section III will significantly increase the accessibility of Rockwood, West Creek, and BBRC, although the retrofits will not bring all the units into full compliance with the Fair Housing Act. As a result, the number of fully compliant units in the Delaware area available to persons with disabilities is less than it would have been had these properties been built with all the required features. Accordingly, to improve the supply of housing in the Delaware area that is accessible to persons with disabilities and to compensate for lessening the housing options open to persons with disabilities, Defendants shall take the following actions:
- Defendants shall create 36 accessible ground level dwelling units at West Creek Village within five years of the entry of this Consent Order. These units will comply with the requirements of Type A (fully accessible) units as specified in the 1998 American National Standard for Accessible and Usable Buildings and Facilities, ICC/ANSI A117.1-1998, §§ 1002.1 - 1002.14.3. This obligation reflects the parties' understanding that Defendants have already voluntarily created eight Type A units at BBRC and over 50 Type A units at Rockwood between the time of the United States' survey of these properties and the preparation of this Consent Order.
- Defendants shall report annually to the United States on their progress in satisfying the requirements of this paragraph, on the anniversary of the entry date of this Consent Order.
- Upon reasonable notice to defendants, representatives of the United States shall be permitted to inspect any such dwelling units at any and all reasonable times to determine compliance with this Consent Order.
49. For the duration of this Consent Order, Defendants shall maintain, and provide to the United States upon request, the following information and statements regarding any covered, multifamily dwellings intended to be developed, built, designed, and/or engineered in whole or in part, by any of them or by any entities in which they have a position of control as an officer, director, member, or have a fifty-percent (53%) or larger ownership share:
(a) the name and address of the project;
(b) a description of the project and the individual units;
(c) the name, address, and telephone number of the civil engineer(s) involved with the project;
(d) (for developers and civil engineers only) a statement from the civil engineer(s) involved with the project acknowledging and describing his/her knowledge of and training in the requirements of the Fair Housing Act 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 and the Fair Housing Accessibility Guidelines;
(e) the name, address and telephone number of the architect(s) involved with the project; and
(f) (for developers and architects only) a statement from the architect(s) acknowledging and describing his/her knowledge of and training in the requirements of the Fair Housing Act 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 and the Fair Housing Accessibility Guidelines.
50. If the engineering documents or architectural plans are revised, and the revisions could have any impact on the accessibility of the dwellings or complex, Defendants 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 and the Fair Housing Accessibility Guidelines.
VII. COMPENSATION OF IDENTIFIED AGGRIEVED PERSONS
51. Defendants shall jointly pay (4) the total sum of $15,000 in monetary damages to the Disabilities Law Program, Community Legal Aid Society, Inc., Wilmington, Delaware ("DLP/CLASI") for its damages as a result of Defendants' failure to design and construct Rockwood Apartments in compliance with the Fair Housing Act and the Fair Housing Accessibility Guidelines. Defendants shall pay this sum within 30 days of the date of entry of this Order, by sending a check payable in that amount to the Disabilities Law Program, Community Legal Aid Society, Inc., Wilmington, Delaware, care of the United States, provided that no amount shall be paid pursuant to this paragraph before the DLP/CLASI has executed a written release (Attachment H) of all claims, legal or equitable, that it might have against Defendants relating to the claims asserted in this lawsuit.
52. Defendants shall jointly pay the total sum of $15,000 in monetary damages to aggrieved person Peter Mitchell, a current Rockwood tenant with a disability, for his damages as a result of Defendants' failure to design and construct Rockwood Apartments in compliance with the Fair Housing Act and the Fair Housing Accessibility Guidelines. Defendants shall pay this sum within 30 days of the date of entry of this Order, by sending a check payable in that amount to Peter Mitchell, care of the United States, provided that no amount shall be paid pursuant to this paragraph before Peter Mitchell has executed a written release (Attachment H) of all claims, legal or equitable, that he might have against Defendants relating to the claims asserted in this lawsuit.
53. Defendants shall jointly pay the total sum of $15,000 in monetary damages to aggrieved person Steven Mashington, a current Rockwood tenant with a disability, for his damages as a result of Defendants' failure to design and construct Rockwood Apartments in compliance with the Fair Housing Act and the Fair Housing Accessibility Guidelines. Defendants shall pay this sum within 30 days of the date of entry of this Order, by sending a check payable in that amount to Steven Mashington, care of the United States, provided that no amount shall be paid pursuant to this paragraph before Steven Mashington has executed a written release (Attachment H) of all claims, legal or equitable, that he might have against Defendants relating to the claims asserted in this lawsuit.
54. Defendants shall jointly pay the total sum of $10,000 in monetary damages to aggrieved person Wayne Carter, an individual with a disability and current BBRC condominium owner, for his damages as a result of Defendants' failure to design and construct BBRC in compliance with the Fair Housing Act and the Fair Housing Accessibility Guidelines. Defendants shall pay this sum within 30 days of the date of entry of this Order, by sending a check payable in that amount to Wayne Carter, care of the United States, provided that no amount shall be paid pursuant to this paragraph before Wayne Carter has executed a written release (Attachment H) of all claims, legal or equitable, that he might have against Defendants relating to the claims asserted in this lawsuit.
55. Defendants shall jointly pay the total sum of $ 5,000 in monetary damages to aggrieved person Richard Warwick, an individual with a disability and current Rockwood tenant, for his damages as a result of Defendants' failure to design and construct Rockwood in compliance with the Fair Housing Act and the Fair Housing Accessibility Guidelines. Defendants shall pay this sum within 30 days of the date of entry of this Order, by sending a check payable in that amount to Richard Warwick, care of the United States, provided that no amount shall be paid pursuant to this paragraph before Richard Warwick has executed a written release (Attachment H) of all claims, legal or equitable, that he might have against Defendants relating to the claims asserted in this lawsuit.
VIII. COMPENSATION OF ADDITIONAL AGGRIEVED PERSONS
56. Within 30 days after the date of this Order, Defendants shall deposit in an interest-bearing escrow account the total sum of $400,000 for the purpose of compensating any other aggrieved persons who may have suffered as a result of Defendants' discriminatory housing practices. This money shall be referred to as "the Settlement Fund."
57. Any interest accruing to the fund shall become a part of the fund and be utilized as set forth in this document.
58. Within 15 days of the entry of this Order, Defendants shall publish the Notice to Potential Victims of Housing Discrimination ("Notice") at Appendix I 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 news section of general circulation newspapers serving the communities of Elkton, Maryland; Wilmington, Delaware; and Bethany Beach, Delaware. 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, Defendants shall submit a newspaper containing the Notice to counsel for the United States. Within 15 days of the entry of this Order, Defendants shall send a copy of the Notice to each of the following organizations:
Disabilities Law Program
100 W. 10th Street, Suite 801
Wilmington, DE 19801
Freedom Center for
Independent Living
3 East Main Street
Middletown, DE 19709
Delaware State Independent
Living Council - Division of
Vocational Rehabilitation
P.O. Box 9969
Wilmington, DE 19809
Independent Resources, Inc.
52 Reads Way
New Castle, DE 19720
Independent Resources, Inc.
#6 Denny Road
Suite 205
Wilmington, DE 19809
Delaware Division of Aging
and Services for People with
Disabilities
Attn: Carol Barnett
1901 N. Dupont Highway
Main Annex, New Castle, DE
19720
State Council for People with
Disabilities
Attn: Kyle Hodges
Delaware Division of
Administrative Services
Margaret O'Neill Bldg, Ste 1
41 Federal Street
Dover, DE 19903
Delaware Division of Human
Relations
Department of State
820 N. French Street
Wilmington, DE 19801
Maryland Disability Law
Center
The Walbert Building
1800 N. Charles Street, 4th Fl
Baltimore, MD 21201
Maryland Statewide
Independent Living Council
5807 Harford Road
Baltimore, MD 21214
Eastern Shore CIL
7 Sunburst Plaza
Cambridge, MD 21613
Maryland Department of
Education - Division of
Vocational Rehabilitation
Upper Chesapeake
Corporate Center
103 Chesapeake Boulevard
Suite B
Elkton, MD 21921-5945
59. Within 30 days of the entry of this Order, Defendants shall send by first-class mail, postage prepaid, a copy of the Notice to each past and present tenant of covered dwelling units at Rockwood and West Creek, and to each past and present owner of a covered dwelling unit at BBRC. Within 45 days of entry of this Order, Defendants shall provide to counsel for the United States proof that the Notice has been sent.
60. Nothing in this section shall preclude the United States from making its own efforts to locate and provide notice to potential aggrieved persons.
61. 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 each such person. 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.
62. 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' 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 H.
63. After the satisfaction of paragraphs 56- 62 and the corresponding time periods have expired, any money remaining in the Settlement Fund shall be released to the defendants.
64. 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.
IX. CIVIL PENALTY
65. Defendants shall pay the total sum of $55,000 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 a check made payable to the United States of America.
X. EDUCATIONAL PROGRAM
66. 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 J.
67. During the term of this Order, within thirty 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 J.
68. Defendants shall also 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 Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991) and the United States Department of Housing and Urban Development, Fair Housing Act Design Manual, A Manual to Assist Builders in Meeting the Accessibility Requirements of the Fair Housing Act, (August 1996, Rev. April 1998). Defendants and all employees and agents whose duties, in whole or in part, involve the 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.
69. 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. A qualified third party, unconnected to Defendants or their employees, agents or counsel, shall conduct the training, 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 K.
XI. NOTICE OF DEFENDANTS' NON-DISCRIMINATION POLICY
70. Within 10 days of the date of entry of this Consent Order, the Defendants shall post and prominently display in the sales or rental offices of all covered multifamily dwellings owned or operated by them, including Rockwood, West Creek, and BBRC, a sign no smaller than 10 by 14 inches indicating that all dwellings are available for rental on a nondiscriminatory basis. A poster that comports with 24 C.F.R. Part 110 will satisfy this requirement.
71. For the duration of this Consent Order, in all future advertising in newspapers, and on pamphlets, brochures and other promotional literature regarding the existing complexes or any new complexes that any Defendant may develop, design, or construct, such Defendant(s) shall place, in a conspicuous location, a statement that the dwelling units include the features for persons with disabilities required by the federal Fair Housing Act.
XII. NOTIFICATION AND DOCUMENT RETENTION REQUIREMENTS
72. Within 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 program specified in Section X 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 X of this Consent Order, they have received and read the Order, and had an opportunity to have questions about the Order answered
73. 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.
74. For the term of this Consent Order, Defendants are required to preserve all records related to this Consent Order, for Rockwood, West Creek, and BBRC and all covered multifamily dwellings designed, constructed, or owned by them. 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.
XIII. DURATION OF ORDER AND TERMINATION OF LEGAL ACTION
75. This Consent Order shall remain in effect for five 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).
76. The Court shall retain jurisdiction for the duration of this Consent Order to enforce the terms of the Order, at which time the case shall be dismissed with prejudice. Plaintiffs may move the Court to extend the duration of the Decree in the interests of justice.
77. 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.
XIV. TIME FOR PERFORMANCE
78. 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.
XV. COSTS OF LITIGATION
79. Each party to this litigation will bear its own costs and attorney's fees associated with this litigation.
SO ORDERED this ______ day of ____________, 2004:
_________________________________UNITED STATES DISTRICT COURT JUDGE
Agreed to by the parties as indicated by the signatures appearing below:
For the United States:
| COLM F. CONNOLLY United States Attorney for the District of Delaware ______________________________ | R. ALEXANDER ACOSTA STEVEN H. ROSENBAUM Chief _____________________________ NICOLE PORTER Deputy Chief ______________________________ |
| For the Defendants: | |
| ____________________________ VERINO PETTINARO Vice-President Pettinaro Construction Company, Inc. Pettinaro Enterprises 234 N. James Street Wilmington, Delaware 19804 and Vice-President West Creek, L.L.C.; Queensbury Village, Inc.; Linder & Company, Inc. (302) 999-0708 Authorized Representative Bethany Bay HomeOwners Association, Inc. 2 Lee Lane Millville, DE 19970 (302) 539-9096 Pennsylvania Bar I.D. No. 52484 Pettinaro Enterprises 234 N. James Street Wilmington, Delaware 19804 (302) 999-0708 Counsel for Verino Pettinaro and Bethany Bay Homeowners Association, Inc. | ____________________________ MARK G. HITCHCOCK President Architecture Plus, P.A. 234 N. James Street Wilmington, Delaware 19804 (302) 999-0708 RICHARD M. LONGO President Hillcrest Associates, Inc. P. O. Box 1180 Hockessin, DE 19707 (610) 274-8613 JEFFREY BOVE, ESQUIRE Counsel for Hillcrest Associates |
| ___________________________ CARMINE CASPER, P.E. President Howard L. Robertson, Inc. 801 Brandywine Boulevard Wilmington, Delaware 19809 (302) 764-2456 Senior Principal Executive Vice President Landmark Engineering One Corporate Commons, Suite 301 100 West Commons Boulevard New Castle, Delaware 19720 (302) 323-9377 | ____________________________ G. KEVIN FASIC, ESQUIRE Delaware Bar I.D. No. 3496 Tighe, Cottrell & Logan, P.A. 704 North King Street, Suite 500 P. O. Box 1031 Wilmington, DE 19899 Counsel for Landmark Engineering JEFFREY A. CLARK President Land Tech, L.L.C. Route 1, Box 17-B 118 Atlantic Avenue Ocean View, DE 19970 (302) 539-2366 Delaware Bar I.D. No. Moore & Rutt, P.A. P. O. Box 554 122 W. Market Street Georgetown, DE 19947 Counsel for Land Tech, LLC |
1. Defendants Hillcrest Associates, Inc., Land Tech, L.L.C., and Landmark Engineering, Inc. are bound solely by the following sections of this Consent Order: II (General Injunction), VI (Non-Discrimination in Future Design and Construction), IX (Civil Penalty), X (Education Program), XII (Notification and Document Retention), and XIII (Duration of Order and Termination of Litigation). Landmark does not, however, admit liability for any fine, penalty, or violation, and has agreed to execute this Consent Order solely in order to resolve any dispute related to the Rockwood Apartments project and to avoid the time and expense involved in further proceedings. Defendants Architecture Plus, P.A. and Howard L. Robertson, Inc. are bound solely by the following sections of this Consent Order: II (General Injunction), VI (Non-Discrimination in Future Design and Construction), X (Education Program), XII (Notification and Document Retention), and XIII (Duration of Order and Termination of Litigation).
2. 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).
3. For purposes of this Order, all reports should be sent to: Chief, Housing and Civil Enforcement Section, Civil Rights Division, United States Department of Justice, 950 Pennsylvania Avenue, NW - NWB G St., Washington, D.C. 20530, Attn: DJ# 175-15-39, or as otherwise directed by the United States.
4. 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.
Document Filed: November 18, 2004 > >