by Joel Ellinwood, AICP

The anti-discrimination law of California (Fair Employment and Housing Act or “FEHA”) (Gov. Code, § 12900 et seq.) and the federal Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.) require that newly constructed dwellings be accessible. Under the FEHA, “covered multi-family dwellings” for which building permits are applied after July 1, 2005, must be designed to be accessible for and useable by disabled persons. (Gov. Code, § 12955.1). This somewhat awkward term is even more inartfully and obscurely defined in Government Code section 12955.1.1, as meaning:

* A building with at least four condominium units or three rental units if the building has an elevator; or,
* The ground floor of dwelling units in buildings with at least four condominium units or three rental units if the building does not have an elevator.

Where a building is a single structure connected by firewalls (e.g. townhouses or row houses) the units do not count as separate buildings. Minimum features must include:

* building entrances on an accessible route
* public and common areas readily accessible to and usable by persons with disabilities
* all doors designed to allow wheelchair passage
* “adaptable” design to include:
– an accessible route into and through the units;
– light switches, electrical outlets thermostats and other environmental controls in accessible locations;
– reinforcement to bathroom walls to allow later installation of grab bars for toilet, bathtub, shower and shower seat; and,
– usable kitchens and bathrooms permitting wheelchair maneuverability (usable presumably means raised floors or lowered counter heights).
– “Adaptable” presumably means that these features could be easily retrofitted.

Multi-story covered multi-family dwellings in buildings without elevators for which permits are applied after July 1, 2005, must be designed and constructed with at least ten (10) percent of the units being accessible, with at least one bathroom on the primary entrance level and the public and common areas. To determine the total number of units, all the multistory dwelling units in buildings on a site are included. “Multi-story” means units with two or more stacked levels of finished living space (typical with townhouses or row houses). Ground floor garages would not count under this definition, however unless the unit was cut into a hillside such that the primary access route was at ground level, it is questionable how this could meet the basic requirement of accessibility.

The costs of compliance are likely to add to development costs of multi-family projects. Given the aging population in America with compliance there may be a marketing advantage and may create a demand that supports a premium price point for accessible units that recovers or outweighs the increased costs.

To avoid the accessibility requirement would mean designing townhouse structures with for sale units that are no more than triplexes or no more than duplexes for rental units. It is uncertain under FEHA, whether the same definition of “condominium” found in the Common Interest Development Act (“CIDA”) (Civ. Code, § 1351 (f)) would apply, and if carefully designed townhouse units in fourplex buildings that qualify as planned developments under CIDA instead of condominiums would still be under FEHA jurisdiction.

The California Department of State Architect (DSA) publishes a manual to aid design professionals in achieving compliance. It is available online by clicking here.

Joel Ellinwood is a senior associate with Abbott and Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.