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Safe Harbor - HUD Fair Housing Requirements |
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Public Sector Members Important Issues Call Summary - June 16, 2005 |
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Participants:
Ila Jones, Florida Delegate & Chair,
Regulatory Affairs Committee |
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Ila Jones, Chair of the NCSBCS Regulatory Committee, welcomed those who had joined the call and introduced Jim Hanna (MD) as moderator; Cheryl Kent, Special Advisor for Disability Policy, HUD Fair Housing and Equal Opportunity; and Kimberly Paarlberg, ICC. She then turned the call over to Jim Hanna for the discussion on Safe Harbor and Fair Housing Act. Presentation by Cheryl Kent, HUD FHEO Ms. Kent gave background on the Fair Housing Act. The provisions of the act are mandatory; the methods to meet the requirements are not. Use of ANSI A117 would meet technical criteria. Look for scoping through HUD regulations and guidelines. (See http://www.hud.gov/offices/fheo for fair housing information.) In 2000 HUD completed a review of four model building codes, following a request from the industry to review all of the available building codes. These various model codes were, for the most part, found to be consistent with the Fair Housing Act except for a few issues which primarily related to scoping requirements. After providing technical guidance on code text changes for the 2000 IBC, HUD recognized 2000 IBC as amended by the 2001 Supplement as being a safe harbor for compliance with the Fair Housing Act’s accessibility requirements. More recently, ICC requested that HUD review the 2003 IBC. HUD’s draft report identified 8 issues that might not be consistent with the Act. After reviewing public comments, HUD resolved 7 of the issues. The remaining area of concern was the accessible route from various site arrival points. It is important for units covered by the Fair Housing Act to be on accessible routes, and it is necessary for Sections 1104.1 and 1107.4 of the codes to be read together to ensure that the Exception to Section 1104.1 is not applied to housing required to provide Type B units in order to ensure consistency with the Fair Housing Act. HUD’s final report on its review of the 2003 IBC requires that ICC distribute a statement to this effect and ensure that jurisdictions that may wish to adopt the 2003 IBC are aware of ICC’s interpretation of the code and the requirement for an accessible route. HUD wants to encourage government to include review for fair housing requirements and to educate code inspectors to these requirements and also to the need for an accessible pedestrian route. It is hoped that code officials will take advantage of training resources through ICC and also those offered by HUD, such as HUD’s Fair Housing Accessibility FIRST education and technical guidance program. Ms. Kent expressed appreciation for being invited to be a part of this call. Presentation by Kim Paarlberg, ICC Ms. Paarlberg is the code development secretary for IBC Chapters 10 & 11. As mentioned, HUD and ICC have been working closely together to assure ICC requirements meet or exceed the Fair Housing provisions. ICC has also been working with the Department of Justice and the Access Board to establish requirements that meet or exceed the Americans with Disabilities Act Accessibility Guidelines (ADAAG). The IBC 2003 is a ‘safe harbor’ document for compliance with FHAG. HUD and ICC are working together to provide additional clarification regarding a consistent interpretation for the exception for accessible routes on very steep sites. ICC is publishing articles, commentary, and sending information to their membership so that everyone can fully understand what the issues are concerning the accessible pedestrian routes between site arrival points and buildings that contain Type B units. In the March 2 NCSBCS Alert, it stated that a fix was needed in the IBC for a jurisdiction to have ‘safe harbor’. It is an educational/interpretation issue rather than something that you have to fix. If a jurisdiction adopts 2003 IBC they will have ‘safe harbor’ for compliance with FHAG. Code change proposal E137-04/05 is in the ICC code change process to clarify this issue for the 2006 IBC. The intent is to make the exception obvious for everyone. ICC will also be applying for ‘safe harbor’ evaluation from HUD for the 2006 edition of the IBC and 2003 edition of the ICC/ANSI A117.1 to be certified as meeting ‘safe harbor’. Training funded through a HUD grant has been available through the ICC for code officials on accessibility as it relates to fair housing. The ICC would like to continue training using this program and they have applied to HUD for additional grant funding with United Spinal Association as a partner. ICC offers members technical assistance over the phone and written interpretations. They also offer plan review service to determine compliance with accessibility requirements, including housing. Questions/Answers Question: Can a homeowner’s association prohibit assisted living facilities in certain areas because of fair housing? Response ICC: Not using the building code as a tool. Use group R-4 is the smaller assisted living facilities most typically found in residential neighborhoods. Group R-4 was developed based on court cases dealing with non-discrimination in regard to zoning and sprinkler requirements. Response HUD: Under FHA those using zoning ordinances as a way of keeping certain types of housing for people with disabilities out of neighborhoods have been cited as violation of fair housing act. HUD and DOJ have published a joint statement on group homes, local land use and the Fair Housing Act, which is available on HUD’s Website, or you may send Cheryl an email message – Cheryl_D._Kent@hud.gov. Response ICC: As indicated in HUD’s reviewed of the 2000 IBC for ‘safe harbor’, the types of facilities that needed additional requirements were the congregate living arrangements, both in institutional and residential facilities. Type B criteria were added to the IBC for all types of congregate residences, including Group R-4. Question: Is there a recommended amendment to code if someone was worried about whether training methods get out to the right people. Response ICC: ICC is working with HUD to get out the correct message through our magazine, training materials and commentaries. We are also working with HUD and NAHB to get a clarification into the 2006 IBC through our code change process (E137-04/05, E156-04/05 and E157-04/05). Response HUD: In both its draft and final reports on HUD’s review of the 2003 IBC, HUD provided a suggested amendment as a possible solution. Question: California works under a proactive program and has rewritten Chapter 11 housing 11A. The state is interested in obtaining safe harbor certification for requirements. Response HUD – The Fair Housing Act does not require HUD to review or certify state and local building codes that have incorporated accessibility requirements intended to mirror the Fair Housing Act’s requirements. Suggest they write to Secretary of HUD or Assistant Secretary for FHEO asking for a review. Available staff resources for such a review are limited. NFPA has asked for such a review of NFPA 5000 and ICC for the 2003 ICC/ANSI A117.1, so HUD will need to do these reviews first. How quickly they can do is a question. Comment: California has been tracking HR 1441 The Inclusive Home Design Act which would require visitability in single family homes and imposes the responsibility to enforce the law on the state. It is recommended that all states should track this bill especially if it is being passed on to state to enforce and government could withhold funds if not enforced. The bill can be found on www.concretechange.org. (Click for fact sheet on HR 1441.) Comment: Does an amendment need to be made to the IBC to clarify this accessible route issue? HUD is talking about an interpretation and that this is a very limited situation of a hilly site where this might become a concern. Is anyone trying to add language in 2006 IBC to address the situation? Or is this a unique situation that you would have to really look at individually? Comment: There is a possibility that not everyone will get the interpretation. Comment: This should be in a guide or manual that ICC might develop as a companion to the code. Response ICC: ICC already discusses accessibility concerns in the commentary and handbook to provide additional clarification and guidance. HUD has provided assistance in writing the information and verifying that the recommendations are consistent with their interpretation of Fair Housing requirements. ICC will do same with the issue of site arrival requirement. It is so much easier and benefits all involved to get elements constructed correctly in the first place than to have to do corrective measures after the fact. Question: Are there any proposed changes? Response ICC: NAHB has developed public comments with the assistance of HUD and ICC. Proposed public comments will be available on ICC website (www.iccsafe.org) on July 25, 2005. The public comments include additional language to clarify HUD’s concerns about possible interpretations on hilly sites. Question: Has California looked at modifying state residential standard to adopt by reference the ICC provisions? Response California: Statutory requirements driven in the state. They have far stricter standards. Yes, they have looked at it. Response ICC: Other states previously had state specific accessibility laws. Since ICC has been working extensively to coordinate with both Fair Housing and the new ADA/ABA Guidelines, several states have moved to using the IBC with some state amendments rather than reworking their own laws for coordination. Washington, Wisconsin, Michigan, and Ohio are examples of state that are moving that way. A common base for regulations leads to better compliance overall since architects/contractors that work in multiple states know at least most of the rules coming into the project. If a state has specific areas where they want to exceed the IBC requirements, they can do that through amendments. To contact ICC for additional information email address is kpaarlberg@iccsafe.org. Closing Ila Jones thanked Cheryl Kent and Kim Paarlberg for presenting, and Jim Hanna for moderating. There being no further items for discussion, the call concluded at 1:00 p.m.
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