Department of Housing and Urban Development - gpo.gov · BOCA National Building Code (BNBC), Building Officials and Code Administrators International (BOCA) ... Chapter 2—Policy

Thursday,

March 23, 2000

Part III

Department ofHousing and UrbanDevelopmentFinal Report of HUD Review of ModelBuilding Codes; Notice

VerDate 20<MAR>2000 17:55 Mar 22, 2000 Jkt 190000 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\23MRN2.SGM pfrm11 PsN: 23MRN2

15740 Federal Register / Vol. 65, No. 57 / Thursday, March 23, 2000 / Notices

1 In this document, citation for the United StatesCode is U.S.C.; the citation for the Code of FederalRegulations is CFR; and the citation for FederalRegister publication is FR.

DEPARTMENT OF HOUSING ANDURBAN DEVELOPMENT

[Docket No. FR–4554–N–01]

Final Report of HUD Review of ModelBuilding Codes

AGENCY: Office of the AssistantSecretary for Fair Housing and EqualOpportunity, HUD.ACTION: Final report.

SUMMARY: The United States Departmentof Housing and Urban Development(HUD or the Department) issues a policystatement and Final Report of HUDReview of Model Building Codes (FinalReport) that identifies the variancesbetween the design and constructionrequirements of the Fair Housing Act(the Act) and the:BOCA National Building Code (BNBC),

Building Officials and CodeAdministrators International (BOCA)1996 edition;

Uniform Building Code (UBC),International Conference of BuildingOfficials (ICBO) 1997 edition;

Standard Building Code (SBC),Southern Building Code CongressInternational (SBCCI) 1997 edition;and

International Building Code First Draft(IBC), International Code Council(ICC) November 1997; ProposedInternational Building Code 2000,International Code Council (IBC–2000) Chapters 10 and 11, Appendixto Chapter 11, and Section 3407(1999).This Final Report also contains

guidance on the Department’s policyconcerning the relationship between therequirements of the Act and itsstandards.

The U.S. House of RepresentativesCommittee on Appropriations directedHUD to complete its review of a matrixthat summarized the provisions of thefour model codes and to issue a policystatement by December 31, 1999. H.R.Rep. No. 286, 106th Cong., 1st Sess. 34(1999). This Final Report is intended tomeet that Congressional mandate. ThisFinal Report additionally is intended toprovide technical assistance to otherinterested parties on this issue. TheDepartment has not and does not intendto promulgate any new technicalrequirements or standards by way ofthis Final Report. The Department doesnot intend this Final Report to beconsidered an endorsement of anymodel building code.

The Department does not wish tosuggest through the issuance of thisreport that it is shifting its responsibilityto enforce the design and construction

requirements of the Act to any modelcode organization or to state and localbuilding officials. However, theDepartment recognizes that oneimportant way to increase compliancewith the design and constructionrequirements of the Act is to incorporatethose requirements into state and localbuilding codes.

This Final Report is divided intochapters as follows:Chapter 1—Introduction and Response to

Public CommentsChapter 2—Policy StatementChapter 3—IBC AnalysisChapter 4—UBC AnalysisChapter 5—SBC AnalysisChapter 6—BOCA AnalysisFOR FURTHER INFORMATION CONTACT: Ms.Cheryl Kent, Director, ProgramCompliance and Disability RightsSupport Division, 451 Seventh Street,SW, Room 5240, Washington, DC20410–0500, telephone (202) 708–2333,extension 7058. (This telephone numberis not toll-free.) Hearing or speech-impaired individuals also may accessthis number via TTY by calling theFederal Information Relay Service at 1–800–877–8339.

This Final Report and the policystatement are also located atwww.hud.gov/fhe/modelcodes. The FairHousing Act, as amended in 1988, theregulations implementing the Act, andthe Fair Housing AccessibilityGuidelines can also be obtained throughlinks provided at this web site. You mayview the matrix or the updated matrix,or the chapters of the codes that theDepartment reviewed; or purchasecopies of CABO/ANSI A117.1–1992 andICC/ANSI A117.1–1998, atwww.intlcode.org/fairhousing. ANSIA117.1–1986 is only available forpurchase from Global EngineeringDocuments, 15 Inverness Way East,Englewood, Colorado 90112. However,copies of the 1986, 1992 and 1998editions of ANSI A117.1 may be viewedat the HUD headquarters library at 451Seventh Street, SW, Washington, DC20410 and at HUD Fair Housing Officesin the following locations: Boston,Massachusetts; New York, New York;Philadelphia, Pennsylvania; Atlanta,Georgia; Chicago, Illinois; Fort Worth,Texas; Kansas City, Kansas; Denver,Colorado; San Francisco, California; andSeattle, Washington.

Copies of all of the relevantdocuments, including the ICC/ANSIA117.1–1998, the ANSI A117.1–1986,and the CABO/ANSI A117.1–1992 arealso available for viewing at the HUDLibrary at 451 Seventh St., SW,Washington, DC 20410. To gainadmission to the HUD Library you mustpresent identification to the security

guards and ask to visit the library.Photocopying in the HUD library islimited to 40 pages and all of thedocuments, with the exception of theHUD produced documents, arecopyrighted and, therefore, not availablefor photocopying.

Dated: March 14, 2000.Eva M. Plaza,Assistant Secretary for Fair Housing andEqual Opportunity.

Chapter 1: Introduction and Responseto Public Comments 1

BackgroundTitle VIII of the Civil Rights Act (the

Fair Housing Act), 42 U.S.C. 3601 etseq., prohibits discrimination inhousing and housing relatedtransactions based on race, color,religion, national origin, and sex. In1988, Congress extended the protectionsof the Act to families with children andpersons with disabilities. 42 U.S.C.3604. (The Act refers to people with‘‘handicaps.’’ Subsequently, in theAmericans with Disabilities Act of 1990and other legislation, Congress adoptedthe term ‘‘persons with disabilities,’’ or‘‘disability,’’ which is the preferredusage. Accordingly, this Final Reporthereinafter uses the terms ‘‘persons withdisabilities,’’ ‘‘disability’’ or‘‘disabled.’’) In response to the seriouslack of accessible housing in the UnitedStates, Congress provided that allcovered multifamily dwellings built forfirst occupancy after March 13, 1991,must include certain basic features ofaccessible and adaptive design. 42U.S.C. 3604(f)(3)(C). These basicaccessibility requirements are known asthe Act’s design and constructionrequirements. One of the underlyingconcepts of the design and constructionrequirements is the creation of housingthat is accessible for persons withdisabilities but that does not necessarilyappear to be different from conventionalhousing.

The Act mandates that all coveredmultifamily dwellings built for firstoccupancy after March 13, 1991, shallbe designed and constructed so that: (1)The public and common use portions ofsuch dwellings are readily accessible toand usable by persons with disabilities;(2) All the doors designed to allowpassage into and within all premiseswithin such dwellings are sufficientlywide to allow passage by disabledpersons in wheelchairs; and (3) Allpremises within such dwellings containthe following features of adaptive


15741Federal Register / Vol. 65, No. 57 / Thursday, March 23, 2000 / Notices

design: (a) An accessible route into andthrough the dwelling; (b) Light switches,electrical outlets, thermostats, and otherenvironmental controls in accessiblelocations; (c) Reinforcements inbathroom walls to allow laterinstallation of grab bars; and (d) Usablekitchens and bathrooms such that anindividual in a wheelchair canmaneuver about the space. 42 U.S.C.3604(f)(3)(C).

The Act’s design and constructionrequirements apply to ‘‘coveredmultifamily dwellings,’’ which means‘‘buildings consisting of 4 or more unitsif such buildings have one or moreelevators; and ground floor units inother buildings consisting of 4 or moreunits.’’ 42 U.S.C. 3604(f)(7). The Act’sdesign and construction requirementsapply to all covered multifamilydwellings built for first occupancy afterMarch 13, 1991. The Act’s design andconstruction requirements do not applyto alterations or renovations tomultifamily dwelling units or to singlefamily detached houses.

The Act does not set forth specifictechnical design criteria that have to befollowed in order to comply with thedesign and construction requirements. Itdoes provide, however, that compliancewith the appropriate requirements of theAmerican National Standard forbuildings and facilities providingaccessibility and usability for physicallyhandicapped people, commonlyreferred to as ANSI A117.1, satisfies theAct’s design and constructionrequirements for the interiors ofdwelling units. 42 U.S.C. 3604(f)(4).

The Act states that Congress did notintend the Department to require statesand units of local government to includethe Act’s accessibility requirements intheir state and local procedures for thereview and approval of newlyconstructed covered multifamilydwellings. 42 U.S.C. § 3604(f)(5)(C).However, Congress authorized theDepartment to encourage the inclusionof these requirements into theirprocedures. Id.

The Act also makes it clear that itdoes not invalidate or limit any otherstate or federal laws that requiredwellings to be designed or constructedin a manner that affords persons withdisabilities greater access than thatrequired under the Act. 42 U.S.C.3604(f)(8). Further, federally fundedfacilities and dwelling units covered bysection 504 of the Rehabilitation Act of1973 (Section 504), the ArchitecturalBarriers Act (ABA), or, whereapplicable, the Americans withDisabilities Act (ADA), must alsocomply with their respective regulatoryrequirements, including the Uniform

Federal Accessibility Standard (UFAS).For Section 504, these regulatoryrequirements may be found at 24 CFRpart 8; for the ABA, 24 CFR part 40; andfor the ADA, 28 CFR parts 35 and/or 36,as applicable.

In 1989, the Department issued itsregulations implementing the designand construction requirements of theAct. 24 CFR 100.205. In the regulations,the Department specifically stated thatcompliance with the appropriaterequirements of ANSI A117.1–1986satisfies the requirements of the Actrelating to interiors of dwelling units. 24CFR 100.205(e).

Congress directed the Secretary ofHUD to ‘‘provide technical assistance tostates and units of local government andother persons to implement [the designand construction requirements].’’ 42U.S.C. 3604(f)(5)(C). To this end, onMarch 6, 1991, the Departmentpublished the ‘‘Final Fair HousingAccessibility Guidelines,’’ (theGuidelines) at 56 FR 9472–9515. TheGuidelines set forth specific technicalguidance for designing coveredmultifamily dwellings to be consistentwith the Fair Housing Act.

Section I of the Guidelines states:These guidelines are not mandatory, nor do

they prescribe specific requirements whichmust be met, and which, if not met, wouldconstitute unlawful discrimination under theFair Housing Act. Builders and developersmay choose to depart from these guidelinesand seek alternate ways to demonstrate thatthey have met the requirements of the FairHousing Act. These guidelines are intendedto provide a safe harbor for compliance withthe accessibility requirements of the FairHousing Act.

56 FR at 9499.On June 24, 1994, the Department

published its ‘‘Supplement to Notice ofFair Housing Accessibility Guidelines:Questions and Answers about theGuidelines,’’ at 59 FR 33362–33368 (theQuestions and Answers About theGuidelines). The Department publisheda Fair Housing Act Design Manual(Design Manual) in 1996 that wasreissued in 1998 with minor changes.

In 1992, the Department wascontacted by the Council of AmericanBuilding Officials (CABO) and modelbuilding code organizations. CABOadvised the Department of its interest indrafting building code language thatwould reflect the design andconstruction requirements of the Act,and asked the Department to providetechnical assistance to its Board forCoordination of Model Codes (BCMC).The Department recognized thatincorporation of building coderequirements that are consistent withthe Act’s requirements would provide

increased compliance. Therefore, insupport of this effort, the Departmentagreed to provide technical assistance toBCMC and the building industryorganizations during 1992 and 1993.Subsequently, the model building codeorganizations incorporated the results oftheir efforts into the model buildingcodes.

The American National StandardsInstitute (ANSI) is responsible forestablishing technical standards inmany different areas. Among thestandards addressed by the ANSI,through the A117 Committee, aretechnical standards for the design ofhousing and facilities that are accessibleto persons with disabilities. BCMCrecommended that the ANSI A117Committee set up a Residential TaskForce to develop technical criteria toaddress the Act’s accessibilityrequirements. The Department is amember of the ANSI A117 Committeeand served on the Residential TaskForce. The focus of the ANSIResidential Task Force was to developtechnical criteria to address theaccessibility requirements for dwellingunits that are covered by the Act. Thiseffort was completed and included inthe ICC/ANSI A117.1–1998. (Thereference to ICC, International CodeCouncil, reflects an organizationalchange in the ANSI only.) Because priorto 1998, ANSI A117.1 already includedtechnical criteria for fully accessibledwelling units, the 1998 ICC/ANSIA117.1 refers to fully accessibledwelling units as ‘‘Type A dwellingunits.’’ Section 1003 of ICC/ANSIA117.1–1998 contains the technicalcriteria for ‘‘Type B dwelling units,’’which are intended to reflect thetechnical requirements for dwellingunits required by the Act to beaccessible.

In 1997, CABO, three model buildingcode organizations, and several buildingindustry organizations contacted theDepartment to discuss, among otheritems, the importance of assuring thatthe design and constructionrequirements of the Act were accuratelyreflected in the three model buildingcodes and in the draft InternationalBuilding Code (IBC), which wasscheduled for completion in 2000. TheDepartment met with representatives ofthese groups along with representativesof disability advocacy organizations andindicated its willingness to review themodel building codes for consistencywith the requirements of the Act, theregulations, and the Guidelines, andthen convene a public meeting at a laterdate to share the results of that review.

In December 1997, CABO submittedto the Department a matrix that



compared four model building codes tothe Act’s design and constructionrequirements. In the fall of 1998, theDepartment awarded a contract toSteven Winter Associates, Inc. (SWA) toanalyze the matrix and the modelbuilding codes and to identify thosesections of the codes that did not meetthe requirements of the Act, regulations,and the Guidelines. The Departmentalso requested that SWA providerecommendations on how eachidentified variance could be revised toconform with the Act, the regulations,and the Guidelines.

The original matrix focused on the1997 First Draft of the IBC. Because theIBC had progressed to a proposed IBC2000 in 1999, the International CodeCouncil (ICC) asked the Department toinclude in its review, to the greatestextent possible, the proposed IBC 2000.The Department also was asked toreview the new 1999 edition of theNational Building Code published byBOCA. The Department agreed toundertake a limited review of theproposed IBC 2000, but due to timeconstraints, was unable to review the1999 BOCA National Building Code. Tofacilitate review of portions of theproposed IBC 2000, BOCA prepared anupdate to the matrix that compared theGuidelines with the First Draft IBC andthe proposed IBC 2000. In addition, theDepartment was provided with copies ofChapters 10 and 11, Appendix toChapter 11, Section 3407, and Appendix34–2 of the proposed IBC 2000.

The Department formed a Model CodeWorking Group (Working Group) towork with its contractor, SWA, on thereview of the model building codes. TheWorking Group consisted of staff fromthe Office of Fair Housing and EqualOpportunity, the Office of GeneralCounsel, and the Office of Housing. Arepresentative of the U. S. Departmentof Justice (DOJ) also participated in theWorking Group.

On October 26, 1999, the Departmentpublished a draft policy statement anddraft report of four model buildingcodes which identified the variancesbetween these codes and the Act’sdesign and construction requirements(the draft report). On November 10,1999, the Department convened a publicmeeting to listen to comments on thedraft report. Ten persons, manyrepresenting consolidated commentsfrom various groups, presented oralcomments at the public meeting. TheDepartment also solicited and receivedwritten comments. The Departmentreceived 30 public comments,representing input from manyorganizations and individuals. Almostall of those who submitted comments

focused on the draft report’s discussionof the proposed IBC 2000.

Those who submitted commentsincluded Acanthus Architecture andPlanning PC (Arizona), the AmericanInstitute of Architects (AIA), theAmerican Seniors Housing Association,the Arizona Center for Disability Law,the Bazelon Center for Mental HealthLaw, Paul Bishop (California architect),the Boston Office of Civil Rights, theBuilding Officials and CodeAdministrators International (BOCA),the Colorado Civil Rights Division, theConsortium of Citizens with Disabilities,the Disability Rights Action Coalitionfor Housing, the Disability Rights ActionCommittee, Disability Rights Inc., theEastern Paralyzed Veterans Association(EPVA), Larry Field (Delawareaccessibility consultant and codesenforcement expert), the InternationalCode Council (ICC), the InternationalConference of Building Officials (ICBO),the Kansas Disability Rights ActionCoalition for Housing, Marsha Mazzwith the United States Access Board,Bruce McKarley (California buildingcode official), the Monroe County LegalAssistance Corporation (Rochester, NewYork), the National ApartmentAssociation (NAA), the NationalAssociation of Home Builders (NAHB),the National Fair Housing Alliance, theNational Multi Housing Council(NMHC), the New Mexico Governor’sCommittee on Concerns of theHandicapped, the Paralyzed Veterans ofAmerica (PVA), Larry Perry (AIA), theRochester Center for IndependentLiving, Emory Rodgers (an Arlington,Virginia building code official), theSouthern Building Code CongressInternational (SBCCI), the TopekaIndependent Living Resource Center,Wheelchair Access Now Today, BillWright (Oklahoma architect), and LeslieYoung with the Center for UniversalDesign at NC State University.

The AIA, the BOCA International, theICC, the ICBO, the NMHC, and LarryPerry, Architect, AIA, submitted one setof consolidated comments and latersubmitted specific recommended codelanguage to address variances that theDepartment had identified in the draftreport. The Department met with thisgroup and others, including the NAHBand EPVA, to discuss therecommendations. In addition, HUDstaff members had telephoneconversations with some of thecommenters in order to obtainclarification of their comments or solicittheir technical knowledge of the issuesraised in their comments.

General Comments on the Draft Report

Dialogue With Code Organizations

CommentsThe overwhelming majority of the

commenters praised or endorsed HUD’sefforts to provide technical assistance tothe model building code organizationsto help ensure that the model codesmeet the accessibility requirements ofthe Act. A number of commentersstrongly urged HUD to continue tomaintain a dialogue with the modelcode organizations to ensure that futureupdates to the International BuildingCode are consistent with the Act’saccessibility requirements. Somecommenters cautioned that noloopholes should weaken the scoping ortechnical requirements of the Act.

ResponseThe Department agrees with these

comments and intends to be activelyengaged in development of futureeditions of ANSI A117.1 through itsparticipation on the ANSI A117Committee. The Department also isavailable for consultation in thedevelopment of future editions of theInternational Building Code. In thisFinal Report, the Departmentrecommends code language that may beused by model code organizations andstates and localities that wish to modifytheir codes to be consistent with theAct. However, the Department believesthat its recommendations are acontinuing step in the dialogue neededto achieve consistency between themodel codes, particularly theInternational Building Code, and theAct’s design and constructionrequirements.

CABO/ANSI A117.1–1992 and ICC/ANSI A117.1–1998 As Safe Harbors

CommentsMany commenters commended the

Department for recognizing ANSIA117.1–1998 as a safe harbor under theFair Housing Act. Several commentersstated that ICC/ANSI A117.1–1998 isthe basis for the accessibility provisionsin the model codes and that in theirview, HUD’s acceptance of ANSIA117.1–1998 as a safe harbor resolvesmany of the concerns of the multifamilyhousing industry. One commenter alsourged the Department to accept futureeditions of the ANSI A117.1 standard asbeing a safe harbor for complying withthe Fair Housing Act.

As new editions of ANSI A117.1 havebeen developed, various organizationshave encouraged HUD to acknowledgethat compliance with those neweditions constitutes safe harbors for



compliance with the Act. For example,in 1998, one commenter wrote to HUDthat:

‘‘The ANSI standard has been revised* * * and a 1998 version is about to bepublished. It is logical to rely on the latestversion of a standard, unless a statutespecifically refers to a particular edition. Inaddition, there are sound policy reasons torely on the latest version of the ANSIstandard, since it reflects improvements inaccessible design. Since the Fair Housing Actdoes not refer to a particular edition of theANSI standard, it would be reasonable for the[HUD Design] Manual and the Guidelines tospecifically permit the use of the current1998 ANSI standard. The 1998 ANSIstandard is currently used by local codeofficials around the country. Therefore, weurge HUD to clarify that the most recentversion of ANSI meets the requirements ofthe Fair Housing Act.’’

Response

In response to the many commenterswho have encouraged the Department toadopt the ICC/ANSI A117.1–1998, theDepartment will soon be publishing aninterim rule, amending certain sectionsof 24 CFR 100.200 to state thatcompliance with the appropriaterequirements of the 1986, 1992, or 1998editions of ANSI A117.1 suffices tosatisfy the Act’s design and constructionrequirements for the interiors ofdwellings and public and common useareas. Compliance with these versionsof ANSI A117.1, the Guidelines, or theDesign Manual are all safe harborsunder the Act.

The Act explicitly states thatcompliance with the appropriaterequirements of ANSI A117.1 suffices tosatisfy the Act’s design and constructionrequirements for the interiors ofdwellings. 42 U.S.C. 3604(f)(4).However, Congress did not intend tolimit the ways to comply with therequirements of the Act to the ANSIA117.1 standard. Congress specified theANSI A117.1 standard in the Act inorder to assure designers of newmultifamily housing that if they followthe ANSI standard, they will have metthe Act’s adaptive design requirements.Congress also noted that its reference toANSI was not intended to require ‘‘thatdesigners follow this standardexclusively, for there may be other localor state standards with whichcompliance is required or there may beother creative methods of meeting thesestandards.’’ H.R. Rep. No. 711, 100thCong., 2d Sess., p.27. (1988).

In 1989, the Department issued itsregulations implementing the designand construction requirements of theAct. 24 CFR 100.205. At the timeCongress passed the Act, and theDepartment promulgated its regulations,

the current edition of ANSI A117.1 wasthe 1986 edition. In response toconcerns that an ‘‘open ended’’reference to the ANSI standardconstituted an unlawful delegation ofthe Department’s rulemaking authority,the Department identified the 1986ANSI A117.1 edition in its final ruleimplementing the Fair Housing Act, andstated its intent to review and, ifappropriate, to adopt future editions asthey were published.

It is important to note that ANSIA117.1 contains only technical criteria,whereas the Fair Housing Act, theimplementing regulations, and theAccessibility Guidelines contain both‘‘scoping’’ and technical criteria.Scoping criteria define when a buildingelement or space must be accessible;technical criteria provide the technicalspecifications on how to make anelement accessible. Thus, designers andbuilders who wish to follow ANSIA117.1 instead of the AccessibilityGuidelines must still look to the Act andthe Department’s regulations todetermine which buildings, dwellingunits, and elements are covered by theAct.

Type A Units

Comment

A commenter stated that the HUDdraft report does not point out that TypeA units in ICC/ANSI A117.1–1998exceed the Fair Housing ActAccessibility Guidelines and urged HUDto clarify that Type A units are notrequired under the Act.

Response

Since 1980, ANSI A117.1 hasincluded technical criteria for fullyaccessible dwelling units. At the timethe Act was passed, the only ANSIA117.1 standard for residential designwere standards for a fully accessibledwelling unit. The ICC/ANSI A117.1–1998 now references two types ofdwelling units, a ‘‘Type A dwellingunit,’’ which is intended to be a fullyaccessible dwelling unit as has beentraditionally provided for in ANSIA117.1, and a ‘‘Type B dwelling unit,’’which is intended to meet the Act’stechnical requirements for the interiorsof dwellings.

The Department agrees that the Actdoes not require that private developersbuild new construction to the Type Astandard, although a Type A unit willsatisfy the Fair Housing Actrequirements. Congress specificallyrecognized this when it stated thatcompliance with the appropriaterequirements of ANSI A117.1 suffices ascompliance with the Act.

Type B Units

CommentOne commenter disagreed with the

draft report’s conclusion that the ICC/ANSI A117.1–1998 standard isconsistent with the Act’s requirements.This commenter stated that there arenumerous requirements in the ICC/ANSI A117.1 standard for Type B unitsthat go beyond Fair Housing Actrequirements, although Type B units aresupposed to reflect the Fair Housing Actaccessibility requirements. Thecommenter proffered that the draftreport should have made an explicitcomparison between the Act’srequirements and Type B requirementsin ICC/ANSI A117.1. This commentersubsequently submitted a list of eightareas where this commenter believes therequirements in the IBC exceed those inthe Guidelines. These eight areas are: (1)The definition, scoping andrequirements for Type A dwelling units;(2) Location of accessible routes; (3)Requirements for a minimum number ofaccessible entrances; (4) Technicalprovisions for security and intercomcontrols and exceptions for redundantcontrols; (5) Requirements for laundryequipment within dwelling units; (6)Exceptions for provisions for bathfacilities; and (7) Dwelling units withaccessible communication features; and(8) Exceptions to provisions for‘‘lavatory.’’

ResponseThe Department will take the

commenter’s concerns underadvisement and will work with thiscommenter and other interestedorganizations to review these areas ofconcern. In addition, the Departmentwill continue to work with members ofthe Committee in the development andrefinement of the ANSI A117.1 criteria.The Department will provide technicalassistance to state and localgovernments that are consideringadopting, either completely or withmodification, model codes or otherprovisions in their building codes inorder to reflect the requirements of theAct.

Further, the Department pledges towork with the model code organizationsas they review and revise theInternational Building Code. The ICCplans to issue a ‘‘stand-alone’’ documentcontaining the accessibilityrequirements found in the IBC 2000,incorporating its responses to theDepartment’s recommendations in thisFinal Report. This ‘‘stand alone’’document will contain the IBCprovisions that meet or exceed thedesign and construction requirements of



the Fair Housing Act. The ICC and theNational Association of Homebuilders(NAHB) are working on an appendix tothe ‘‘stand alone’’ document to addressthe eight areas where they agree that theType B dwelling unit exceeds the FairHousing Accessibility Guidelines. TheDepartment has agreed to review thosedocuments and is committed to workingwith those organizations and others toarrive at a document in code languageto serve as a safe harbor under the FairHousing Act Amendments for personswho design and construct multifamilydwellings to its specifications.

By way of further explanation withrespect to the Department’s draft report,the purpose of the Department’s reviewwas to identify any instances where thetechnical criteria in the later versions ofANSI A117.1 did not provide the samelevel of accessibility as described in theGuidelines, the 1986 ANSI A117.1, or asmandated by the Act. The Departmentfound no such instances where adifference in the technical criteria wasinconsistent with the requirements ofthe Act.

The Act does not require thatdevelopers of covered multifamilyhousing build according to the ANSIA117.1 standard or to its Type Bdwelling unit design criteria.Compliance with the ICC/ANSI A117.1for Type B dwelling units is one ofseveral ways to comply with the Act. Asstated above, the Fair Housing Act’saccessibility requirements can beachieved in a number of ways. However,a developer would be required tocomply with a state or local code or lawto which they are otherwise subject, thathas adopted either a model code oraccessibility standard that includes theType B dwelling unit.

The Act recognized that many statesand localities, as well as certain otherfederal laws, already had establishedstricter accessibility requirements thanthose provided for under the Act. TheAct states that it shall not be construedto invalidate or limit any law thatrequires dwellings to be designed andconstructed in a manner that affordspersons with disabilities greater accessthan is required under the Act. 42U.S.C. 3604(f)(8). To the extent thatstates and localities adopt ANSI A117.1standards that go beyond the Act’sminimum standards, the Department iswithout authority or desire to invalidateor limit this adoption.

The Accredited Standards Committeeon Architectural Features and SiteDesign of Public Buildings andResidential Structures for Persons WithHandicaps (A117) developed the A117.1ANSI standards in 1986, 1992, and1998. That Committee included this

Department as well as other federalagencies, building and housing industryrepresentatives, building codeorganizations, disability advocacyorganizations, and many of thecommenters on HUD’s draft report. TheAmerican National Standards Institutewhich adopted the standards submittedby the Committee, requires that dueprocess and consensus be met by theCommittee. The ANSI Board ofStandards Review considers thatconsensus has been met when‘‘substantial agreement has beenreached by directly and materiallyaffected interests.’’ Consensus meansmore than a simple majority but doesnot necessarily require unanimity, andrequires that all points of view be heard.

Relationship Between the Act’sRequirements and Other AccessibilityRequirements and Standards

This Final Report addresses only theapplication of the requirements of theAct to covered multifamily dwellings.Certain of these dwellings, as well ascertain public and common use areas ofsuch dwellings, may also be covered byvarious other laws, such as theArchitectural Barriers Act of 1968, 42U.S.C. 4151–4157 (the ABA); Section504 of the Rehabilitation Act of 1973, 29U.S.C. 794 (Section 504); and theAmericans with Disabilities Act of 1990,42 U.S.C. 12101–12213 (the ADA).

The ABA applies to certain buildingsfinanced in whole or in part withfederal funds. The Department’sregulations for the ABA are found at 24CFR parts 40 and 41. Section 504applies to programs and activitiesreceiving federal financial assistance,and programs and activities conductedby Executive agencies, including theDepartment. The Department’sregulations for Section 504 are found at24 CFR parts 8 and 9. The Fair HousingAct accessibility requirements apply toboth private housing and togovernment-funded housing, includingfederally funded housing, which is alsosubject to the accessibility requirementsof Section 504. HUD funded housingmust be designed and constructed tomeet the scoping and technicalrequirements of both the Fair HousingAct and Section 504, and in certaininstances, the ABA.

The ADA is a broad civil rights lawguaranteeing equal opportunity forindividuals with disabilities inemployment, public accommodations,transportation, state and localgovernment services, andtelecommunications. The Department ofJustice (DOJ) is the lead federal agencyfor implementation of the ADA. HUDdoes not have the authority to review

the model building code standards forcompliance with the ADA.

Comments

A number of commenters expressedconcern that the draft report includedwithin the coverage of the Act types ofoccupancies and uses that are alsocovered under the ADA. They urged theDepartment to make it clear that the Actdoes not preempt any of theaccessibility requirements of the ADA.One commenter requested that HUDcoordinate with DOJ with respect to theAct and ADA accessibility standards asthey apply to public and common useareas.

One commenter requested that theDepartment encourage architects andbuilders to follow design andconstruction concepts incorporated instandards for ‘‘universal design’’ ofaccessible housing.

Response

Although the Department’s teamwhich reviewed the model buildingcodes included staff from DOJ, the focusof the review was the Fair Housing Act.In addition, as stated above, theDepartment does not have authority toreview the model building codes forcompliance with the ADA.

Title II of the ADA applies to housingthat is designed and constructed by astate or local governmental entity(including a public housing authority).Because most government-constructedhousing is constructed with federalfunds, in the majority of circumstances,there will be overlapping coverage ofthat housing under the Act, Title II, andSection 504. In some cases a state orlocal government may develop housingwithout the use of federal funding. Inthose cases, the requirements of the Actand Title II of the ADA, but not Section504, would apply to the housing.

Title III of the ADA, in relevant part,applies to commercial facilities andpublic accommodations. Inns, hotels,motels, and other places of lodging arepublic accommodations under Title IIIof the ADA, as are dormitories,homeless shelters, nursing homes, andsome timeshares. See 28 CFR 36.104. Inaddition, the common areas for publicuse at ‘‘covered multifamily dwellings’’under the Act must meet the ADAStandards for Accessible Design (ADAStandards). A rental office in amultifamily residential development, aconvenience store located in thatdevelopment, or a room in a home thatis used as a day care center or medicaloffice, would be covered under Title IIIof the ADA. 28 CFR 36.104. Commonuse areas that are for use only by the



residents and their guests would not becovered by the ADA.

The Department recognizes that theAct’s design and constructionrequirements do not preempt the ADAand wishes to clarify that in those caseswhere a development is subject to morethan one accessibility standard, the lawsand the standards must be read togetherand followed together.

There are certain properties, orportions thereof, that are covered byboth the Act and Title II and/or Title IIIof the ADA. These may include certaintimeshares, dormitories, residentialhotels, boarding houses, nursing homes,homeless shelters, congregate carefacilities, public use portions of privatemultifamily dwellings, and publichousing. These properties must bedesigned and built in accordance withthe accessibility requirements of boththe Act and the ADA. In addition, to theextent that the requirements of thesevarious laws overlap, the more stringentrequirements of each law must be met,in terms of both scoping and technicalrequirements.

In the preamble to its ruleimplementing Title III, DOJ discussedthe relationship between therequirements of the Fair Housing Actand the ADA. The preamble noted thatmany facilities are mixed use facilities.For example, a hotel may allow bothresidential and short term stays. In thatcase, both the ADA and the FairHousing Act may apply to the facility.The preamble to the Title III rule alsostated that residential hotels, commonlyknown as ‘‘single room occupancies,’’may fall under the Fair Housing Actwhen operated or used as long termresidences, but they are also considered‘‘places of lodging’’ under the ADAwhen guests are free to use them on ashort term basis. The preamble alsodiscussed a similar analysis withrespect to homeless shelters, nursinghomes, residential care facilities, andother facilities where persons mayreside for varying lengths of time. Thepreamble concluded that such facilitiesshould be analyzed separately underboth the Fair Housing Act and the ADA.56 FR at 3551–52.

Enforcement of the Fair Housing Act

Comments

Many of the commenters specificallyurged HUD to continue to vigorouslyenforce the Act’s accessibilityrequirements. Several other commentersmade clear that they see incorporationof the Act’s requirements into the codesas a supplement to the enforcementmethods currently available under theAct, not as a replacement for that

enforcement. One commenter, a localbuilding code official, stated that byadoption of codes that include therequirements of the Act, state and localjurisdictions will be assisting HUD in itsenforcement efforts. Finally, several ofthe commenters indicated that once theAct’s requirements are incorporated intoa building code, the permitting andinspection process should not create asafe harbor for builders who receivepermits, nor should it absolve housingindustry professionals from theirresponsibilities under the Act.

Response

The Act is clear that while state andlocal building code officials areresponsible for enforcing the buildingcode standards adopted in theirrespective jurisdictions, 42 U.S.C. 3604(f)(5)(B); 24 CFR 100.205(g), theDepartment is responsible for enforcingthe design and constructionrequirements of the Act. 42 U.S.C.3604(f)(6)(A), 3610. If a jurisdictionadopts a model building code that HUDhas determined conforms with thedesign and construction requirements ofthe Act, then covered residentialbuildings that are constructed inaccordance with plans andspecifications approved during thebuilding permitting process will be incompliance with the requirements of theAct, unless the building code officialhas waived one or more of thoserequirements, or the building codeofficial has incorrectly interpreted orapplied the building code provisions.

However, the fact that a jurisdictionhas adopted a code that conforms withthe accessibility requirements of theAct, or that construction of a residentialbuilding was approved under a code,does not change the Department’sstatutory responsibility to conduct aninvestigation based on receipt of acomplaint from an aggrieved person todetermine whether the requirements ofthe Act have been met. 42 U.S.C.3604(f)(6)(A); 24 CFR 100.205(h).Section 804 of the Act provides that‘‘determinations by a State or unit ofgeneral local government underparagraphs 5(A) and (B) shall not beconclusive in enforcement proceedingsunder this title.’’ 42 U.S.C. 3604(f)(6)(B).A full discussion of the Department’senforcement responsibilities may befound in the Department’s policystatement connected with this FinalReport.

Certification of Codes

Comments

Two commenters recommended thatHUD consider certifying state and local

building codes as meeting theaccessibility requirements of the FairHousing Act.

ResponseThere are over 40,000 state and local

building code jurisdictions in theUnited States. The Act does not requirethe Department to certify codes.However, through its work with themodel code organizations, and existingand planned activities to providetechnical assistance to state and localbuilding code officials, the Departmentintends to work with building codeorganizations to ensure that those codesincorporate the requirements of the Act.

Comments Related to the Model CodeReports

Definition of Dwelling UnitIn Draft Recommendation Number 1

in the draft report on the proposed IBC2000, the Department suggested that theproposed IBC 2000 be revised to modifythe definition of ‘‘dwelling unit,’’ forpurposes of the accessibilityrequirements of the proposed IBC 2000at Section 1102.1, so that it covers allthe residential structures that arecovered by the Act, as follows:

A single unit providing complete,independent living facilities for one or morepersons, including permanent provisions forliving, sleeping, eating, cooking andsanitation. For purposes of Chapter 11,sleeping accommodations intended foroccupancy by a separate household instructures with shared cooking or toiletingfacilities shall be considered to be separatedwelling units.

CommentsA large number of commenters

believed that the IBC’s definition of‘‘dwelling unit’’ should remain as it is.Two commenters pointed out thatadopting Recommendation 1 wouldresult in the inclusion of such buildingsas hotels, hospitals and prisons thatotherwise are neither R–2 properties norcovered by the Act’s design andconstruction requirements. Onecommenter also noted that adoption ofRecommendation 1 would requirebuilding officials to make a decision asto whether residents of a building withshared kitchens and bathrooms wereseparate households or a single‘‘family.’’ That commenter also statedthat HUD’s scoping recommendationsmay create confusion by suggesting thatcertain technical terms mean somethingdifferent in Chapter 11 than they do inother chapters of the existing modelcodes and the proposed IBC.

One commenter specificallysupported Recommendation 1. Thatcommenter noted that the Act



recognizes that group homes thatoperate as a single housekeeping unitare indistinguishable (for land usepurposes) from homes that housetraditional families. In the clearestsense, then, according to thecommenter, such group homes do notconstitute ‘‘covered multifamilydwellings.’’ The commenter notedfurther that, as a practical matter, mostgroup homes are established in existingsingle family structures. Those fewgroup homes that are newly constructedunder HUD’s Section 811 program arerequired to meet the accessibilityrequirements set forth in theDepartment’s Section 504 regulations.

One commenter recommended that anew word or phrase should be used toensure coverage of those situations inwhich sleeping rooms with sharedkitchens or bathroom facilities arecovered by the Act. Another commenterhad a similar suggestion that, ratherthan revising the definitions of‘‘dwelling unit’’ and the use groups, ICCshould adopt one new term thatdescribes all covered multifamilydwellings, including dormitories,timeshares, congregate care facilities,shared kitchens and bathrooms, andexcludes such transient properties ashotels. In subsequent discussions withthe Department, the ICC recommendedadding a new term and definition for‘‘sleeping unit,’’ which captures coveredunits not now covered by the IBC. TheICC suggested, ‘‘Sleeping Unit—a roomor space in which people sleep, whichcan also include permanent provisionsfor living, eating, and sanitation, butdoes not include permanent kitchenfacilities.’’ That term would be used inconjunction with the term dwelling unitwhere appropriate in the IBC.

Another commenter also suggested analternate revision, specifically that theterm ‘‘Dwelling Unit, Type B’’ berevised to include a single unitproviding complete, independent livingfacilities for one or more persons,including permanent provisions forliving, sleeping, eating, cooking andsanitation. The revised term would alsoinclude units with permanentprovisions for living and sleeping withshared cooking or sanitation facilitiesoutside the unit. The Type B unit wouldbe designed and constructed inaccordance with ICC/ANSI A117.1,intended to be consistent with thetechnical requirements of fair housingrequired by federal law.

ResponseRather than revising the definition of

‘‘dwelling unit,’’ in newRecommendation Number 2, theDepartment recommends adding the

term ‘‘sleeping accommodationintended as a residence’’ to Chapter 11of the proposed IBC 2000.

The comments to the proposed IBC2000 also apply, with variation, to theremaining three model building codes.In its Final Report on the UBC, theDepartment has recommended changesto appropriate sections of Chapter 11covering ‘‘guestrooms’’ that are intendedas a residence. In the Final Report onthe BNBC and the SBC, the Departmenthas recommended the addition of a newterm, ‘‘sleeping unit,’’ defined as a roomin which people sleep intended to beoccupied as a residence,’’ and addingthat term to the appropriate sections ofChapter 11 of BNBC and SBC.

However, the Department recognizesthat there may be other approaches toresolving this variance that may be as ormore effective. The Department willcontinue to work with the model codeorganizations and other interestedmembers of the public on this issue.

It is the Department’s position thatdetached single family dwellingsoccupied by persons who function as asingle household, including grouphomes that function as a singlehousehold, are not ‘‘coveredmultifamily dwellings’’ for purposes ofthe design and constructionrequirements of the Act. However, theDepartment’s regulations make it clearthat all group homes are ‘‘dwellingunits’’ for purposes of the Act’sprohibitions on discrimination based ondisability. See 24 CFR 100.201. TheDepartment further recognizes that otheraccessibility standards, includingaccessibility requirements mandatedunder programs providing federalfinancial assistance, apply to detachedsingle family group homes.

Recommended Revision to theDefinition of ‘‘Dwelling Unit, Type B’’

Section 1102 of the proposed IBC2000 defines a ‘‘Dwelling Unit, Type B’’as a dwelling unit designed andconstructed for accessibility inaccordance with ICC/ANSI A117.1–1998, ‘‘intended to be consistent withthe technical requirements of fairhousing required by federal law.’’ TheDepartment did not discuss thisdefinition in its draft report.

ResponseIn response to the comments

concerning the definition of ‘‘dwellingunit,’’ and the comments concerning therelationship between the requirementsof the Fair Housing Act and otherfederal accessibility standards, theDepartment has added a new finding ofa variance, and a new RecommendationNumber 1, in the Final Report on the

proposed IBC 2000 with respect to thedefinition of a ‘‘Dwelling unit, Type B.’’This Recommendation is intended toclarify that the Type B dwelling unitincorporates the requirements of theFair Housing Act, but not necessarilythe requirements of any other federallaw.

Transient HousingIn Draft Recommendation 2 of its draft

report on the proposed IBC 2000, HUDsuggested that the proposed IBC 2000,and other model codes, be revised tomake clear that certain types of housingthat the model codes viewed astransient are dwellings subject to therequirements of the Fair Housing Act,including the design and constructionrequirements. This housing may includetimeshares, residential hotels, orhomeless shelters. Most of the modelcodes use a 30-day measure as themeans to determine whether a buildingis for transient use and thus not adwelling subject to their accessibilityrequirements for dwellings in Chapter11.

It is the Department’s position that a30-day measure is inappropriate indetermining whether a building iscovered by the Act. As stated in its draftreport, the Department’s position on thisissue is discussed in the Questions andAnswers About the Guidelines. Thus,the draft report echoed the Questionsand Answers when it noted that lengthof stay is only one factor in determiningwhether a building is a ‘‘coveredmultifamily dwelling.’’ Other factors tobe considered include: (1) Whether therental rate for the unit will be calculatedbased on a daily, weekly, monthly oryearly basis; (2) Whether the terms andlength of occupancy will be establishedthrough a lease or other writtenagreement; (3) What amenities will beincluded inside the unit, includingkitchen facilities; (4) How the purposeof the property will be marketed to thepublic; (5) Whether the residentpossesses the right to return to theproperty; and (6) Whether the residenthas anywhere else to which to return.

CommentsOnly one commenter supported the

Department’s recommendation, and thatcommenter encouraged HUD to providea more detailed means to measurewhether a residential occupancy is‘‘primarily transient in nature’’ or‘‘primarily permanent in nature.’’

Several commenters suggested thatHUD should endorse the 30-daymeasure of transience used in the modelcodes, stating that length of stay is themost prevalent, substantive and reliablecriteria.



With respect to timesharesspecifically, one group of commenterssuggested: (1) Deleting ‘‘vacation’’because the reason for the timeshare isirrelevant, and (2) listing timeshares asR–1 occupancies, but scoping them inChapter 11 with the same criteria as forR–2 occupancies. The Departmentagrees that the term ‘‘vacation’’ isunnecessary.

ResponseAfter considering the comments, HUD

agrees that revising the IBC’s residentialuse groups, as reflected in DraftRecommendation 2, would not be themost appropriate way to ensure thattimeshares, residential hotels, homelessshelters occupied as a residence,boarding houses, and similar short-termhousing meet the accessibilityrequirements in Chapter 11 of the Code.However, the Department continues tobelieve that the 30-day test of transienceused by the IBC is inappropriate. Toendorse such a requirement wouldmislead designers, builders and otherreaders of the code because it wouldgive the false impression that suchhousing need not meet the requirementsof the Act. The Department endorses thefactor analysis stated in the aboveresponse for determining whether adwelling is not transient.

In promulgating the fair housingregulations and the Guidelines, HUDspecified as dwellings covered by theAct and its design and constructionrequirements such short-term housingas time-sharing properties and homelessshelters. See 24 CFR 100.201; 56 FR at9500; 54 FR at 3238 & 3244. Courts alsohave applied the Act’s generalrequirements to various types of short-term housing, including timeshareunits, Louisiana Acorn Fair Housing v.Quarter House, Oak Ridge Park, Inc.,952 F. Supp. 352, 359 (E.D. La. 1997);housing for migrant farm workers, LauerFarms, Inc. v. Waushara County Boardof Adjustment, 986 F. Supp. 544, 559(E.D. Wis. 1997), Hernandez v. EverFresh Co., 923 F. Supp. 1305, 1308 (D.Ore. 1996), Villegas v. Sandy Farms,Inc., 929 F. Supp. 1324, 1328 (D. Ore.1996); nursing homes, Hovsons, Inc. v.Township of Brick, 89 F.3d 1096, 1102(3d Cir. 1996), United States v.Commonwealth of Puerto Rico, 764 F.Supp. 220 (D.P.R. 1991); a facility forpeople with HIV, Baxter v. City ofBelleville, 720 F. Supp. 720, 731 (S.D.Ill. 1989); homeless shelters, TurningPoint v. City of Caldwell, 74 F.3d 941(9th Cir. 1996), Woods v. Foster, 884 F.Supp. 1169, 1173 (N.D. Ill. 1995); aresidential school for emotionallydisturbed children, United States v.Massachusetts Industrial Finance

Agency, 910 F. Supp. 21, 26 n.2 (D.Mass. 1996); and seasonal vacationbungalows, United States v. ColumbusCountry Club, 915 F.2d 877, 881 (3d Cir.1990), cert. denied, 501 U.S. 1205(1991).

In finding that these types of short-term residencies are subject to the Act’srequirements, the courts have noted thatlength of stay is not the sole measure ofwhether the property is a ‘‘dwelling’’under the Act. The courts have lookedto various factors, including whether theresident possesses the right to return tothe property, whether he or she hasanywhere else to which to return, andthe amenities at the property. See, e.g.,Louisiana Acorn Fair Housing, 952 F.Supp. at 359; Woods v. Foster, 884 F.Supp. at 1173; Baxter v. City ofBelleville, 720 F. Supp. at 731.

The factors that HUD set forth in thedraft report seek to provide guidance ondetermining whether a property is ashort-term dwelling covered by the Actor a transient property that is notcovered by the Act. HUD continues tobelieve that these factors must beconsidered by owners, designers,builders, developers and architects indetermining whether a building must bedesigned and constructed in accordancewith the Act.

In sum, the Department cannotendorse the 30-day measure that theproposed IBC 2000 and other modelcodes use. Therefore, the Department isretaining its determination that three ofthe model codes do not meet therequirements of the Act in that regard.The UBC defines residential use groupsdifferently than the other three modelcodes, and the Department did not finda variance with respect to that modelcode.

Accordingly, because the above-described types of housing which aresubject to the Act are not required tomeet IBC Chapter 11’s requirements fordwelling units, the IBC is not consistentwith the Act, the regulations and theGuidelines. At this time, the Departmentis uncertain how best to resolve thisinconsistency between the IBC and theDepartment’s regulations. Therefore, theDepartment is withdrawing DraftRecommendation Number 2. TheDepartment will continue to work withICC and other interested code, industryand advocacy organizations to developlanguage that appropriately conveys tobuilders and designers that certainresidencies of less than 30 days mustmeet the Act’s accessibilityrequirements. In the meantime, theDepartment believes the factors listedabove must be considered by owners,builders, developers, designers andarchitects in determining whether the

requirements of the Act apply to thedesign and construction of buildingswith rooms for short term occupancy.

Assisted Living/Congregate HousingIn Draft Recommendation Number 3

on the proposed IBC 2000, theDepartment suggested that thedefinition of ‘‘dwelling unit’’ containedin Draft Recommendation Number 1 beadopted and that the proposed IBC 2000be revised to modify the language of thecharging paragraph of the proposed IBC2000 Section 1107.5.4, Accessibledwelling units. Modification to thecharging paragraph would require thatin occupancies in Group R–2 and R–3,as applicable in Section 101.2, wherethere are four or more dwelling units ina single structure, every dwelling unitshall be a Type B dwelling unit. Inoccupancies in Group R–4 where thereare four or more dwelling units in asingle structure, at least one shall beType A, and all other dwelling unitsshall be Type B dwelling units. Inoccupancies in Group I–1 where thereare four or more dwelling units in asingle structure, at least 4 percent, butnot less than one, of the dwelling unitsshall be Type A, and all other dwellingunits shall be Type B. In nursing homesof Group I–2, where there are four ormore dwelling units in a singlestructure, at least 50 percent, but notless than one, of the dwelling units shallbe Type A dwelling units, and all of theother dwelling units shall be Type B.

CommentsOne group of commenters suggested

that rather than adopting DraftRecommendation Number 3, the IBCshould be revised to make it clear thatall covered units must comply with therequirements for Type B dwelling units,in addition to the ADA Standards foraccessible units.

ResponseAfter consideration of all of the

comments, the Department has decidedto modify its Draft RecommendationNumber 3 with a new RecommendationNumber 2 in the Final Report on theproposed IBC 2000 which recommendsnew language to be included in Section1107.5.4 that requires ‘‘sleepingaccommodations intended to beoccupied as a residence’’ to be Type B.In addition, under its newRecommendation Number 2, theDepartment recommends modificationsto the charging paragraphs of Sections1107.3.1 (Group I–1), 1107.3.2 (Group I–2), and 1107.5.7 (Group R–4) whichrequire all sleeping accommodationsintended to be occupied as a residenceto be Type B. Additionally, since these



comments also apply to other modelbuilding codes reviewed, similarmodifications have been made to eachof those reports.

Definition of ‘‘Ground Floor’’In its draft report, the Department

concluded that the IBC’s scoping ofType B dwelling units does notadequately address situations wherethere may be more than one groundfloor in a building. The Department’sDraft Recommendation Number 4 foraddressing this variance was that theproposed IBC 2000 define the termground floor for purposes of Chapter 11to match the regulations and theGuidelines and delete the definition of‘‘dwelling unit, ground floor’’ fromSection 1102.

CommentsOne commenter believed that an

exception may be needed for dwellingunits in which the entry to the unit ison the ground floor, but the living andsleeping areas are on the second floor,and that in such case, the unit wouldnot be required to meet the accessibilityrequirements of the Act.

A group of commenters stated that theproposed IBC 2000 is intended to beconsistent with the Department’sregulations and Guidelines, which statethat a building may have more than oneground floor or may have ground floordwelling units on different levels of abuilding. However, this group notedthat it is not unreasonable to considerclarifying its intent by making it moreevident in the code that there can bemore than one ground floor or groundfloor units on different levels of abuilding.

This group pointed out that any unitthat meets the IBC’s definition of‘‘Dwelling unit, ground floor,’’ is aground floor unit, regardless on whichfloor or level of the building it islocated. The IBC definition is:Dwelling unit, ground floor—a dwelling

unit with a primary entrance andhabitable space at grade.The group added, however, that the

Department’s recommended language isnot consistent with the language andstyle that is customary to buildingcodes. The group concluded that thepotential confusion can be eliminatedand the intent of the Act achieved byrequiring that at least one levelcontaining dwelling units be providedwith an entrance from the exterior (andthus have Type B dwelling units); andany other levels that have an entrancefrom the exterior and contain dwellingunits have Type B dwelling units. Thegroup, however, did not offer languageto accomplish this recommendation.

Another commenter agreed that adefinition of ‘‘ground floor’’ is neededin Chapter 11, since the exceptions in1107.5.4 use the term, and it is notdefined elsewhere in the code. Thiscommenter also noted that the IBCdefinition of ‘‘Dwelling unit, groundfloor’’ does not describe ground floorunits that are on an accessible route thatis above grade.

This commenter suggested that someof the wording in the Department’srecommendation should be in thecommentary section of the code. Thecommenter suggested that the definitionof ground floor be: ‘‘Any floor of abuilding with an entrance on anaccessible route.’’ The commenter alsostated that the provision in theDepartment’s recommendation thatstates: ‘‘Where the first floor containingdwelling units in a structure is abovegrade, all units on that floor shall beserved by an entrance on an accessibleroute,’’ is a requirement, and should notbe buried in a definition. Thecommenter recommended adding thislanguage to the end of the chargingparagraph of 1107.5.4, just before theexceptions.

In addition, during the review of thepublic comments, two new concernsarose: (1) whether or not the IBCscoping language, in combination withthe definition of ‘‘dwelling unit, groundfloor,’’ makes it clear that there must beat least one ground floor in a building,and (2) whether the language ofException 2 of 1107.5.4 results inrequiring builders to make the lowestfloor of a building containing dwellingunits accessible even if it were morepractical to make a different floor (suchas the second or third floor) containingdwelling units accessible when thatfloor is closer to the grade, even if not‘‘at grade.’’

ResponseThe Department carefully considered

all comments received on this issue.The Department believes this is one ofthe more difficult issues to addressbecause the Act is a civil rights law, andthe language of the statute and theDepartment’s regulations make it clearthat covered multifamily dwellingsmust be designed and constructed in amanner that incorporates those featuresof accessible and adaptable design. TheDepartment’s regulatory definition ofground floor is also clear that a buildingmay have one or more ground floors.

The Department is also mindful of thefact that the language in theDepartment’s definition of ground flooris not couched in building codeterminology. While some commentersoffered alternative language, the

Department does not believe thealternative language offered addressesthe variances discussed above.Therefore, the Department is retainingits finding that the proposed IBC 2000language, and the comparable languageof the other three model codes, is notconsistent with the requirements of the1988 Act. The Department maintainsthat the IBC is not clear with respect torequiring additional ground floors to beaccessible, and that the scopinglanguage and exception discussed abovecreates another potential variance withrespect to the fact that there must be atleast one ground floor (unless it isimpractical as provided in theDepartment’s regulations and theGuidelines).

However, the Department iswithdrawing its recommendation withrespect to the proposed IBC 2000 andthe other model codes that alsocontained a similar recommendation.The Department will work with themodel code organizations, and any otherinterested persons, to developalternative language that will addressthis issue to the Department’ssatisfaction. In the meantime, builders,developers, owners, designers,architects and others involved in thedesign and construction of housingcovered by the Act must apply theDepartment’s definition of ‘‘groundfloor’’ when making decisions about theapplicability of the accessibilityrequirements of the Act.

First Level of LivingIn its draft report on the UBC, the

Department concluded that the languageof Section 1103.1.9.3, Multi-unitdwellings, Exception 2, was ambiguousand could be interpreted to exclude thefirst floor of dwelling units in a buildingin which dwelling units are not on thefloor at grade. Draft RecommendationNumber 5 of the UBC analysis proposedto clear up the ambiguity by changingthe language of Section 1103.1.9.3, asfollows:

Where no elevator service is provided in astructure and a floor at grade does notcontain dwelling units, only those dwellingunits located on the first floor containingdwelling units of either Group R, Division 1apartment occupancies or Group R, Division3 occupancies need comply with therequirements of this section.

CommentsA commenter that reviewed the draft

report on the UBC commented that DraftRecommendation Number 5 to the UBCdid not sufficiently clear up theambiguity noted by the Department.This commenter suggested revising theRecommendation to read: * * * only



those dwelling units located on the firstfloor containing dwelling units abovethe floor at grade.’’

Response

The Department has adopted thecommenter’s suggested language andrevised the applicable recommendationin the UBC draft report, as well as in anyother relevant model code report.

Definition of Building and StructureIn Draft Recommendation Number 5

to the IBC 2000 draft report, theDepartment recommended that theproposed IBC 2000 Exceptions inSection 1107.5.4 be modified byeliminating any reference to the term‘‘building’’ and replacing it with theterm ‘‘structure’’ to ensure that firewallcriteria are eliminated for the purpose ofscoping the accessibility requirementsfor Type B dwelling units.

Comments

Several commenters opposed DraftRecommendation Number 5. Onecommenter noted that replacing‘‘building’’ with ‘‘structure’’ isunnecessary and may have unintendedconsequences. Another commenterbelieved that there is a better way offixing the variance and proposedmodifying the definition of a Type Bunit to say that dwelling units separatedby firewalls do not constitute separatebuildings. A group of commenterssuggested that changing the term‘‘building’’ to ‘‘structure’’ would meanthat, in a newly-built project, if onetownhouse owner elected to have anelevator installed in his/her unit, allother units would then have to beconstructed with elevators. The ICC alsobelieved that changing ‘‘building’’ to‘‘structure’’ could actually reduce thenumber of units required to beaccessible.

Response

After re-examining the proposed IBC2000, the Department believes that theproposed IBC 2000 is clear that dwellingunits separated by firewalls do notconstitute separated buildings and thatthe suggested revision to IBC is notneeded. Thus, the Department haswithdrawn this recommendation fromthe Final Report on the proposed IBC2000. The Department also has mademodifications to the reports on the othermodel codes as appropriate.

BreezewaysThe Department noted in its draft

report in Draft RecommendationNumber 6 on the proposed IBC 2000that in most cases two structures thatare connected by a breezeway or

stairway and share the same roof areconsidered one building. However, incases where the breezeway or stairwaythat structurally connects both buildingsdoes not provide the only means ofegress and does not share the same roofas the two structures, whether or notthis is one building must be determinedunder the IBC on a case by case basis.In addition, in some cases, the IBCconsiders walkways, breezeways, andstairways accessory structures and notintegral to the building. If they aredetermined to be accessory structures,each building that they connect isexamined separately. The Department,therefore, concluded that the IBC maynot meet the requirements of theGuidelines in terms of covered unitsconnected by breezeways or stairways,and recommended adding language toSection 3104.2 to make it clear that forpurposes of accessibility under Chapter11, buildings or structures structurallyconnected to other buildings orstructures by pedestrian walkways,breezeways, or stairways shall beconsidered one structure.

Comments

A number of commenters thought thatthe Department’s recommendation wasincorrect and impractical. They pointedout that the word ‘‘structure’’ includessidewalks and utility lines that linksingle family homes. Another pointedout that two unrelated buildingsseparated by a distance of more than ‘‘afew feet’’ but connected by a bridgecould be considered to be a singlebuilding, when this may not have beenthe Department’s intent.

Response

The Department has carefullyconsidered all of these comments, butcontinues to believe that for purposes ofcalculating the total number of dwellingunits required to be Type B dwellingunits, buildings that are structurallyconnected and buildings with multiplewings are a single building and must betreated as such. In addition, Section3104 of the proposed IBC 2000 appliesspecifically to connections betweenbuildings such as pedestrian walkwaysor tunnels, located at, above, or belowgrade level, that are used as a means oftravel by persons. The Department alsodisagrees with the conclusion that all ofthe structures referenced by some of thecommenters would come intoconsideration, i.e., pipes, gas lines,telephone poles, etc. The Department’srecommendation specified whatfacilities would be deemed as beingconnecting, that is, pedestrianwalkways, breezeways, or stairways.

On the other hand, the Departmentagrees with the concern that thereference to Chapter 11 in itsrecommendation is too broad. TheDepartment notes that it did not intendto address two clearly separatestructures that are joined only by awalkway or a tunnel of considerabledistance. Therefore, the Department isrevising its recommendation to statethat for purposes of calculating thenumber of Type B dwelling units andType B sleeping accommodationsrequired by Chapter 11, structurallyconnected buildings and buildings withmultiple wings shall be considered onestructure. Similar modifications arebeing made to the reports concerningthe other model codes.

Multistory UnitsThe Department concluded that the

proposed IBC 2000’s definition of‘‘dwelling unit, multistory,’’ which is adwelling unit with habitable orbathroom space located on more thanone story, could result in a unit beingconsidered multistory if one levelcontains living or ‘‘habitable’’ space andthe floor above or below contains onlya bathroom. Therefore, the Departmentrecommended in Draft RecommendationNumber 7, that this definition be revisedto delete the reference to bathroomspace.

CommentsOne group of commenters agreed with

the Department’s recommendeddefinition of multistory units, butsuggested that it be prefaced with thestatement, ‘‘[f]or purposes ofaccessibility.’’ Another commenterdisagreed with the Department’srecommendation and believed thatbathroom space should be consideredpart of the living space.

ResponseThe Department disagrees with the

contention that bathroom space is livingspace. The Department believes that theinclusion of bathroom space in thedefinition of ‘‘Dwelling unit,multistory’’ creates the possibility that adwelling unit designed with a small‘‘loft,’’ or a ground floor with an entryfoyer and a bathroom would be treatedas a multistory dwelling unit andthereby not covered by the requirementsof the Act.

However, the Department agrees withthe suggestion that the language beprefaced, ‘‘For purposes ofaccessibility,’’ and has revised therecommendation accordingly in thereport on the proposed IBC 2000 and allother model code reports that discussthis issue.



Site Impracticality

In its draft report on the proposed IBC2000, and in other model code reports,the Department noted that the modelcode language describing siteimpracticality due to site terrain, usingthe site analysis test set forth in theGuidelines, did not include languageclarifying that all ground floor units inbuildings with a common entrance, orground floor units served by a particularentrance, must be made accessible if theentrance to the units is on an accessibleroute. The reports also pointed out thatthe codes did not use the term ‘‘lessthan 10%’’ in the test. The reports alsofound that the model codes did not meetthe provisions of the Guidelines becausethey failed to include language that,regardless of site considerations, anaccessible entrance served by anaccessible route is practical wheneveran elevator connects parking with aground floor, in which case all groundfloor units are covered, or whenever anelevated walk with a slope no greaterthan 10% is planned between anentrance and a pedestrian or vehiculararrival point. The Department madeseveral recommendations to addressthese inconsistencies under DraftRecommendation Number 8.

Comments

One commenter, in its review of thedraft report on the UBC, agreed with thegeneral intent of the recommendation,but thought that the use of the term‘‘walkway’’ implies something actuallyconstructed, and the Department shouldsubstitute the term ‘‘accessible route’’.The commenter stated that it hadencountered a situation where the slopebetween a planned entrance and avehicular or pedestrian arrival pointwas less than 8.33% but there was no‘‘walkway’’ connecting the entrance andarrival point. The commenter discusseda specific situation where adevelopment had been constructed on asteep site but all buildings on top of thesite were on a completely flat area.However, there was always at least onestep between the parking lot and eachunit, and consequently there was noaccessible route between the unitentrance and the parking lot. Thecommenter asked whether a buildercould calculate the number of units thathad to comply with the Act based on thetotal buildable area that has an existingnatural grade of less than 10% slopeonly, excluding dwelling units that havea grade of less than 10% slope but lackan accessible route because of theimposition of a step along the routefrom the entrance to the planned arrivalpoint.

Another commenter agreed with thestrategy to incorporate an elevatedwalkway concept into the site analysistest. A group of commenters agreed withour recommendation with respect to theproposed IBC 2000, but restated therecommendation in code language andformat.

ResponseThe Department believes that it is

clear from the language of theregulations, and the language of theGuidelines, that the site impracticalityexception cannot be applied toinstances in which the lack of anaccessible route is due to manmadebarriers, such as the failure to providea walkway or the construction of a step.The language of Exception 4, Section1103.1.9.3 of the UBC refers tomeasurement of the slope of gradesprior to development. The Departmentbelieves that this language adequatelyaddresses the commenter’s concern.

The Department has reviewedproposed language submitted by the ICCto address these issues, and has adoptedthese recommendations, with somemodifications, in the Final Report onthe proposed IBC 2000 as well as in theother model code reports. TheDepartment believes these revisions alsohelp to address the concerns raised bythe commenter on the UBC.

Application of the Site ImpracticalityTest to Buildings With Elevators

The Department found that thelanguage of the model codes did notadequately clarify that buildings withelevators must provide an accessibleentrance on an accessible routeregardless of site impracticality. TheDepartment recommended language thataddressed this variance, inRecommendation Number 9 of theproposed IBC 2000 and comparablerecommendations in the reports on theother model codes.

The only comments received on thisrecommendation endorsed it. TheDepartment’s recommendation remainsunchanged in the model code reports.

Sites With Unusual CharacteristicsIn Draft Recommendation Number 10

on the proposed IBC 2000, and incomparable recommendations in theother model code reports, theDepartment addressed its concern thatthe model code language describing thesite impracticality test for sites withunusual characteristics did not containthe provision that an accessible entranceon an accessible route is impracticalwhen the unusual site characteristicsresult in a difference in finished gradeelevation exceeding 30 inches AND 10

percent, measured between an entranceand ALL vehicular or pedestrian arrivalpoints within 50 feet of the plannedentrance, and if none, then between theclosest vehicular or pedestrian arrivalpoints. The Department believed thatthe omission of the words ‘‘AND’’ and‘‘ALL’’ constituted a variance with theprovisions of the Guidelines.

CommentsThe only two organizations to

comment on this recommendationagreed with the recommendation.However, one of the commenterspointed out that the term ‘‘all’’ isimplied based on the construction ofbuilding code language, and therefore isunnecessary.

ResponseThe Department agrees with the

commenter on this point and hasrevised its recommendation in all of themodel code reports accordingly, whileretaining its recommendation related tosubstitution of ‘‘and’’ for ‘‘or.’’

Vehicular Route as an Alternative to anAccessible Pedestrian Route

Proposed IBC 2000 Section 1107.5.5,and comparable sections of the othermodel codes, contain an Exception thatis similar to the provision in theGuidelines that permits a vehicularroute as an alternative to an accessiblepedestrian route under certaincircumstances. That Exception states:

If the slope of the finished ground levelbetween accessible facilities and buildingsexceeds one unit vertical in 12 unitshorizontal, or where physical barriersprevent the installation of an accessibleroute, a vehicular route with parking at eachaccessible facility or building is permitted inplace of the accessible route.

The Department concluded that theIBC does not include language makingit clear that accessible parking and curbramps must be available at each publicor common use facility to which accessis provided by a vehicular route.

CommentsAccording to one group of

commenters, Recommendation Number11 is not needed. This group believedthat the IBC’s current reference to‘‘parking’’ under Exception 1 to Section1107.5.5 is adequate. The groupbelieved that there is no need to insertthe term ‘‘accessible’’ before the term‘‘parking’’ and the terms ‘‘spaces andcurb ramps’’ after the term ‘‘parking’’because it may create an ‘‘undesirablerestriction of configurations’’. The groupreferred to Section 1106, whichregulates parking and requires a certainpercentage of parking spaces to be



accessible, and 1106.5, which requiresaccessible parking spaces to be locatedon the shortest accessible route to anaccessible entrance. The groupindicated that curb ramps are neededonly where curbs are provided. It statedthat ANSI requires curb ramps to beprovided where accessible routes crosscurbs and that this is adequate.

This group of commenters furtherindicated that, in some cases, not allpublic and common use facilities arerequired to be accessible. They statedthat the Department’s recommendationwould require accessible parking at non-accessible facilities. They indicated thatinserting the terms ‘‘public or commonuse’’ in the Department’srecommendation is not necessarybecause the charging paragraph appliesto ‘‘exterior and interior spaces andfacilities’’ that serve the accessibledwelling unit which includes the‘‘public and common use’’ spaces.

Another commenter agreed with ourrecommendation and believes it addsclarity to the code.

Response

The Department agrees that thelanguage of IBC Section 1107.5.5,together with the language of Section1106, incorporate the technicalrequirements associated with thevehicular route exception. For purposesof clarity, the Department recommendsthat the language of the Exception toIBC Section 1107.5.5 be modified to adda reference to Section 1106. Similarrevisions have been made to the othermodel code reports.

Subsection 1(d) of the section ofRequirement 2 of the Guidelines thataddresses accessible routes states:‘‘Where site or legal constraints preventa route accessible to wheelchair usersbetween covered multifamily dwellingsand public or common use facilitieselsewhere on the site, an acceptablealternative is the provision of access viaa vehicular route so long as there isaccessible parking on an accessibleroute to at least 2% of covered dwellingunits, and necessary site provisionssuch as parking and curb cuts areavailable at the public or common usefacility.’’ This language does not limitthe requirement to provide accessibleparking to accessible facilities.Similarly, subsection 4 of Requirement2 of the Guidelines provides that, ifprovided at the site, there must beaccessible parking at facilities that serveaccessible buildings. The Department isnot implying in this recommendationthat each public or common use facilityon a site must be accessible.

HeadroomIn its draft report on the proposed IBC

2000, and in other model code reports,the Department noted that the codeapparently did not include headroomrequirements in its technical provisionsfor accessible routes. However, the IBC2000 does include headroomrequirements in the provisions forprotruding objects. In DraftRecommendation Number 12 in theproposed IBC 2000, and in the otherdraft reports, the Departmentrecommended a revision to the codelanguage regarding accessible route.

CommentsWhile one commentator agreed with

our recommendation, another pointedout that the IBC’s requirement includedall ‘‘circulation paths’’ and not just themeans of egress as would theDepartment’s recommendation.

ResponseThe Department has concluded that it

is appropriate to delete DraftRecommendation Number 12 in theproposed IBC 2000 Final Report and inthe other model code reports becausesimilar language in the code addressesthe Department’s concerns.

StairsIn its draft report on the proposed IBC

2000, and other model codes, theDepartment expressed concern that therequirements related to the accessibilityprovisions for stairs, because they werefound in Chapter 10, Means of Egress,did not necessarily apply to stairs thatconnect levels not connected by anelevator if they are not part of a meansof egress. The Guidelines state thataccessibility should be provided onstairs located along routes connectinglevels not connected by an elevator. Forexample, a ground floor entry mighthave steps up to a bank of mailboxes,with a ramp located beside the steps. InDraft Recommendation Number 13 tothe proposed IBC 2000, and incomparable sections of the reports onother model codes, the Departmentproposed revised language to the codesaddressing this issue.

CommentsCommenters suggested that accessible

stair design should reference IBCChapter 10 instead of the ICC/ANSIA117.1–1998 and that the Department’srequirement would actually allow non-complying stairs where the two levelsare served by an elevator. Oneorganization commented that: ‘‘The IBCrequires all stairs on a means of egress(except those within a dwelling unit) tomeet requirements conforming to ICC/

ANSI A117.1–1998. Essentially, allstairs except those in a dwelling unitwill comply, and dwelling units withstairs will inevitably be multistory andtherefore not covered by therequirements of the Act. The SWAproposal would actually reducecompliance by allowing levels served byelevators to be served by non-complyingstairs. At any rate, the proposed changeto Section 1108 would be overridden bythe ‘mainstreamed’ requirements foundin IBC Chapter 10.’’ Another commenterstated: ‘‘We agree with the intent andrecommendation, but think that to avoidinconsistency, the reference should beto Section 1003.3.3 in IBC chapter 10,rather than to ICC/ANSI A117.1–1998.’’

One group of commenters concededthat there were a few differencesbetween the stairway requirements inthe IBC 2000 and those in the ICC/ANSIA117.1. They also pointed out arecommended editorial revision to thereference to stairs along accessibleroutes connecting floor levels that arenot connected by an elevator.

ResponseThe Department concurs with the

group of commenters’ editorialrecommendation, and also concurs withthe group of commenters that there areslight differences in the technicalrequirements for stairs in Chapter 10from those in the ICC/ANSI A117.1–1998. There also appear to be somedifferences in the scoping provisions.For these reasons, the Department hasmodified its recommendation to addresspart of the group of commenters’recommendation but maintains itsposition regarding referencing of ICC/ANSI A117.1–1998.

Parking and Passenger Loading ZonesSection 1106 of the proposed IBC

2000 contains the scoping and technicalcriteria for parking and passengerloading zones. In its review of Section1106, the Department noted fewvariances with the requirements of theAct. However, the Department did notevariances with respect to several of theGuidelines’ provisions for accessibleparking, including: (1) Technical criteriato address accessibility of public andcommon use type single-car parkinggarages when such garages are madeavailable for assignment or rental, (2)scoping requirements to assure thataccessible parking is provided on thesame terms and with the full range ofchoices as those provided to otherresidents, (3) if visitor parking isprovided, accessible visitor parkingsufficient to provide access to gradelevel entrances of covered multifamilydwellings, and (4) where parking is



provided at facilities, accessibleparking.

In Draft Recommendation Number 14on the proposed IBC 2000, theDepartment made recommendations toaddress these identified variances.

CommentsThe Department received a number of

comments on this section of its draftreport. One commenter stated thatincluding garage provisions from theQuestions and Answers About theGuidelines in our recommendation isnot appropriate because they are notpart of the Guidelines. This commenteralso observed that the IBC applies the2% rule to all the parking at the site andnot just to the parking serving coveredunits; that accessible ‘‘visitor’’ parkingis difficult to enforce unless there is aclear separation between parking forresidents and parking for visitors; andthat the parking provisions in the IBCare based on ‘‘where provided’’ becauselocal zoning codes, not building codes,require parking. Commenters also statedthat the term ‘‘sufficient’’ in HUD’srecommendation may be less thanrequired by IBC and the ADA Standardswhen parking also serves a publicaccommodation. The term ‘‘sufficient’’also captures parking serving other usegroups, shops on a ground floor, forexample. The term ‘‘sufficient’’ is aproblem because it is not building codeterminology.

In addition, the commenters opinedthat HUD’s recommendation is based ona false assumption that all types ofparking are available to all residents.One group of commenters noted that theAct does not require parking wherenone is intended.

Another commenter stated that theparking requirements of the codes areconflicting. For example, the UBCrequirement for accessible parkingexceeds that of the FHA. Onecommenter stated that HUD should notaccept any standard that does notspecify that accessible parking must beclose to an accessible entrance. Thecommenter noted that the 1986 versionof ANSI A117.1 contained a provisionthat accessible parking spaces shall belocated on the shortest possibleaccessible circulation route to anaccessible entrance of the building. Thecommenter noted that this standard hadbeen eliminated from the CABO ANSIA117.1–1992.

ResponseThe Guidelines provide:If provided at the site, designated

accessible parking at the dwelling unit onrequest of residents with handicaps, on thesame terms and with the full range of choices

(e.g., surface parking or garage) that areprovided for other residents of the project,with accessible parking on a route accessibleto wheelchairs for at least 2% of the covereddwelling units; accessible visitor parkingsufficient to provide access to grade-levelentrances of covered multifamily dwellings;and accessible parking at facilities (e.g.,swimming pools) that serve accessiblebuildings.

In addition to the above provisions ofthe Guidelines, the Questions andAnswers About the Guidelines provideadditional guidance on the requirementsfor parking related to technical criteriafor accessible public and common usetype single-car garages, and applicationof the 2% requirement when there ismore than one type of parking. TheQuestions and Answers are asupplement to the Guidelines and theDepartment treats them as furtherinterpretation of the Guidelines.

The Department has considered all ofthese comments, and made somerevisions in its recommendations. TheDepartment’s identified variances arenot intended to recommend that IBC orany of the other model codes revise anyscoping requirements that are broaderthan those in the Guidelines. However,the Department continues to believe thatthose scoping provisions identified asvariances are not consistent with thelanguage in the Guidelines, and ismaintaining these identified variances.The Department further notes, however,with respect to accessibility of publicand common use single-car parkinggarages, that there may be othertechnical criteria that the codes couldadopt that will constitute accessibilityof such garages, such as by applying theaccessibility requirements for vanaccessible parking spaces to theinteriors of such garages, and providinganother means of egress from the garagethat connects to the accessible route andthe entrances of covered dwelling units.The Department’s recommendation isnot intended to preclude the codeorganizations from developingalternative language to address thisinconsistency. The Department is alsowilling to work with the codeorganizations and any other interestedpersons in developing language toaddress these variances. TheDepartment is also clarifying the use ofthe term ‘‘sufficient’’ in its finalrecommendations.

The ANSI A117 Committee made aspecific effort to remove all scopinglanguage from the CABO/ANSI A117.1–1992. Similarly, ICC/ANSI A117.1–1998removed scoping provisions. Therequirement that accessible parking belocated on the shortest possible route toan accessible building entrance is a

scoping provision. All of the modelbuilding codes include this requirementin their code language.

Accessible Facilities/RecreationalFacilities

In its review of the model codes, theDepartment did not identify anyvariances related to the number ofaccessible recreational facilities thatmust be provided at a site.

CommentsOne commenter, reviewing the draft

report on the UBC, commented that theGuidelines state that: ‘‘Where multiplerecreational facilities, (e.g., tenniscourts) are provided sufficientaccessible facilities of each type shouldbe provided to assure equal opportunityfor use by persons with disabilities.’’However, Section 1103.9.1.1 of the UBCrequires that at least 25%, but not lessthan one, of each type of each group offacilities be accessible. This provisionalso is found in the other model codes.

ResponseThe Department recognizes that the

UBC’s language in Section 1103.9.1.1and equivalent language in other modelcodes differ from the provisions of theGuidelines. The Guidelines state that‘‘[w]here multiple recreational facilities(e.g., tennis courts) are provided,sufficient accessible facilities of eachtype to assure equitable opportunity foruse by persons with handicaps.’’ Asdiscussed in the preamble to the finalGuidelines, several persons who werecommenting on the Department’sproposed Guidelines, suggested that theDepartment adopt the standard that isreflected in the model codes—aminimum of 25% (or at least one) ofeach type of recreational facility. TheDepartment decided to retain the moreflexible approach that the requirementsof 24 CFR 100.205(c)(1) are met if‘‘sufficient’’ accessible facilities areprovided.

In many instances, compliance withthe scoping requirement under themodel codes for the provision ofaccessible recreational facilities whenthere are multiple recreational facilitiesof the same type on a site will constitutecompliance with the Guidelines’provision for ‘‘sufficient accessiblefacilities to assure equitable opportunityfor use * * *’’. However, there may beinstances when, using the model codeformula, there are not sufficientaccessible recreational facilities to servethe accessible units at a site. Therefore,the Department has added a finding thatthe model codes that have expressedthis formula do not comply with theprovisions of the Guidelines. However,



because this matter was not included inthe draft reports, and there has not beenan opportunity for public participationin a resolution of this matter, theDepartment is not including arecommendation to resolve this matter.The Department will work with allinterested parties to address this matter.

Multistory Units Served by Elevators

The Department noted that the IBCdoes not state that where a multistorydwelling unit is provided with elevatorservice to only one floor, the storyserved by the elevator must be theprimary entry to the unit. TheDepartment recommended a change toSection 1107.5.4, Exception 3, toaddress this issue.

Comments

A group of commenters agreed thatthere is a need to clarify that theprimary entrance be on the floor ofelevator service where the elevator onlyserves one floor of a multistory unit.Another commenter agreed withRecommendation 15. One commenterseemed to interpret thisrecommendation to be saying that oncean elevator is installed in one multistoryunit, this would somehow require otherunits in a townhouse development to berequired to be accessible.

Response

The Department’s DraftRecommendation Number 15 wasintended to address a concern with thelanguage of Exception 3 to Section1107.5.4 of the proposed IBC 2000,which the Department interprets to beaddressing situations in which amultistory unit is located in a buildingthat has one or more elevators, such asa mid-rise building where the top floorconsists of multistory rather than single-story apartments. The Department’srecommendation is not intended torequire, with respect to a non-elevatorbuilding consisting of a row ofmultistory townhouses, that if one suchtownhouse is designed and constructedwith an elevator, all other multistoryunits in that building must include anelevator. The Department discussed thisissue in the preamble to its regulations,and concluded the multistorytownhouses are not covered unless theyhave elevators. Thus, only the unit thatis designed and constructed with anelevator, in a building of four or moredwelling units, would be covered.Therefore, the Department’srecommendation on this issue remainsthe same.

Accessible Route and Special DesignFeatures

The Department identified only onevariance concerning the UBC languagerelated to Requirement 4 of theGuidelines, Accessible route into andthrough the covered dwelling unit. Thatvariance dealt with multistory dwellingunits in elevator buildings, discussedabove.

CommentsOne commenter pointed out that the

Guidelines state that where a covereddwelling unit has special designfeatures, such as a raised or sunkenliving room, these areas must notinterrupt the accessible route throughthe remainder of the dwelling unit. Thecommenter additionally noted that theDesign Manual clarified that only one ofthese special design features is allowedand that no part of the kitchen orbathroom may be located in a raised orsunken area. The commenter believesthat the UBC does not sufficientlyaddress these limitations on the use ofspecial design features.

Response

The charging paragraph of UBCSection 1106.2.1 states: ‘‘At least oneaccessible route complying with thissection shall connect all spaces andelements that are a part of the dwellingunit. Where only one accessible route isprovided, it shall not pass throughbathrooms, closets or similar spaces.’’The Exception to that paragraph is thatonly one of either a sunken or raisedliving, dining, or sleeping room, or amezzanine that does not have plumbingfixtures or enclosed habitable space isallowed. The Department believes thatthe language of Section 1106.2.1 issufficiently clear and means that specialdesign features may not interrupt anaccessible route and that bathroom orkitchen space may not be located in aspecial design feature.

Chapter 2: Policy Statement

IntroductionThis policy statement provides

information on the design andconstruction requirements of the FairHousing Act (the Act) with regard tonew construction of residential housingbuilt for first occupancy after March 13,1991, and the U.S. Department ofHousing and Urban Development’s(HUD or the Department) administrationand enforcement of these requirements.The policy statement, together with theFinal Report of HUD Review of ModelBuilding Codes (Final Report), providetechnical assistance to building codeorganizations and officials regarding the

accessibility provisions of four modelbuilding codes and identify variancesbetween the model building codes andthe requirements of the Act, theDepartment’s implementing regulationsat 24 CFR Part 14 et al. (the regulations),and the Fair Housing AccessibilityGuidelines (the Guidelines).

This policy statement and the FinalReport also provide guidance on theDepartment’s policy concerning therelationship between the requirementsof the Act and its enforcement by theDepartment and the model buildingcodes and other accessibility laws andstandards.

Further, this policy statement andFinal Report responds to the House ofRepresentatives Committee onAppropriations directive to HUD tocomplete its review of a matrixsubmitted by building and codeorganizations that compared theGuidelines with the accessibilityprovisions in the model building codesand to issue a policy statement byDecember 31, 1999. H.R. Rep. No. 298,106th Cong., 1st Sess. 34 (1999).

BackgroundThe Fair Housing Act mandates that

all covered multifamily dwellingsdesigned and constructed for firstoccupancy after March 13, 1991, mustcontain specified features of accessibleand adaptable design. 42 U.S.C.3604(f)(3)(C). In 1989, the Departmentissued its regulations implementing theAct’s design and constructionrequirements. 24 CFR 100.205. Both theAct and the regulations state thatcompliance with the appropriaterequirements of the American NationalStandards Institute (ANSI) A117.1standard suffices to satisfy the Act’saccessibility requirements. (The Actuses the term ‘‘handicap,’’ however, inkeeping with preferred terminologyestablished in the Americans withDisabilities Act of 1990, this policystatement and Final Report uses theterms ‘‘persons with disabilities,’’‘‘disability,’’ or ‘‘disabled.’’)

On March 6, 1991, after considerationof extensive public comment fromarchitects, developers, builders, personswith disabilities, and other interestedgroups, the Department published the‘‘Fair Housing AccessibilityGuidelines,’’ which set forth specificguidelines for designing dwelling unitsconsistent with the Act. 56 FR 9472–9515. In keeping with the Act and theregulations, the Guidelines are largelybased on the ANSI A117.1 standard.

In 1992, the Department wascontacted by the Council of AmericanBuilding Officials (CABO), and themodel building code organizations.



CABO advised the Department of itsinterest in drafting building codelanguage that would reflect the designand construction requirements of theAct, and asked the Department toprovide technical assistance to its Boardfor Coordination of Model Codes(BCMC) in this regard. The Departmentrecognized that incorporation ofbuilding code requirements that areconsistent with the Act’s requirementswould provide an increased measure ofcompliance. Therefore, in support ofthis effort, the Department agreed toprovide technical assistance to BCMCand the building industry organizations,and did so during 1992 and 1993. Themodel building code organizationssubsequently incorporated the results oftheir efforts into the model buildingcodes.

The American National StandardsInstitute (ANSI) is responsible forestablishing technical standards inmany different areas. Among thestandards addressed by the ANSI,through the A117 Committee, aretechnical standards for the design ofhousing and facilities that are accessibleto persons with disabilities. BCMCrecommended that the ANSI A117Committee set up a Residential TaskForce to develop technical criteria toaddress the Act’s accessibilityrequirements. The Department is amember of the ANSI A117 Committee,and was asked to appointrepresentatives to serve on theResidential Task Force. The technicalcriteria developed by the ANSIResidential Task Force were included inthe ICC/ANSI A117.1–1998. (Thereference to ICC, International CodeCouncil, reflects an organizationalchange in the ANSI only.)

Since 1961, ANSI A117.1 has been theaccessibility standard used by theprivate industry, and, since 1980, hasincluded technical criteria for fullyaccessible dwelling units. The 1998ICC/ANSI A117.1 calls these fullyaccessible dwelling units ‘‘Type Adwelling units.’’ The requirements forType A dwelling units are found atSection 1002 of ICC/ANSI A117.1–1998.The 1998 ANSI also contains technicalcriteria for a ‘‘Type B dwelling unit.’’These criteria are found at Section 1003of ICC/ANSI A117.1–1998 and areintended to reflect the technicalrequirements for dwelling unitsrequired to be accessible by the Act.Note, however, that the Act does notrequire that developers build newconstruction to the Type A standard inorder to meet the requirements of theAct, although a Type A unit will satisfythe Act’s requirements.

In 1997, CABO, three model buildingcode organizations and several buildingindustry organizations contacted theDepartment to discuss, among otheritems, the importance of assuring thatthe design and constructionrequirements of the Act were accuratelyreflected in the three model buildingcodes and in the draft InternationalBuilding Code (IBC), which wasscheduled for completion in 2000. TheDepartment met with representatives ofthese groups along with representativesof disability advocacy organizations andindicated its willingness to review thesemodel building codes for consistencywith the requirements of the Act, theregulations, and the Guidelines, andthen convene a public meeting at a laterdate to share the results of that review.

In late December 1997, CABOsubmitted to the Department a matrixthat compared model four buildingcodes to the Fair Housing Act’s designand construction requirements. In thefall of 1998, the Department awarded acontract to Steven Winter Associates,Inc., (SWA) to analyze the matrix andthe model building codes and toidentify those sections of the codeswhich did not meet the requirements ofthe Act, the regulations, and theGuidelines. The Department alsorequested that SWA draftrecommendations on how eachidentified variance could be corrected inorder to conform with the Act, theregulations, and the Guidelines. Thefour model building codes are asfollows:

National Model Building Codes

National Building Code, BuildingOfficials and Code AdministratorsInternational (BOCA), 1996 edition

Uniform Building Code, InternationalConference of Building Officials(ICBO), 1997 edition

Standard Building Code, SouthernBuilding Code CongressInternational (SBCCI), 1997 edition

International Building Code

International Building Code, (FirstDraft) International Code Council (ICC)November 1997

Although the original matrix focusedon the 1997 First Draft of theInternational Building Code (IBC),because the IBC had progressed to aproposed IBC 2000, the ICC asked theDepartment to include in its review, tothe greatest extent possible, theproposed IBC 2000 and the new 1999edition of the National Building Codepublished by BOCA. The Departmentagreed to undertake a limited review ofthe proposed IBC 2000, but due to time

constraints, was unable to review the1999 BOCA. To facilitate review ofportions of the proposed IBC 2000,BOCA prepared an update to theDecember, 1997 matrix that comparedthe Guidelines with the First Draft IBC,and the proposed IBC 2000. In addition,the Department was provided withcopies of Chapters 10 and 11, Appendixto Chapter 11, Section 3407, andAppendix 34–2 of the proposed IBC2000.

The Department formed a Model CodeWorking Group (Working Group) towork with its contractor on the reviewof the model building codes. TheWorking Group consisted of staff fromthe Office of Fair Housing and EqualOpportunity, the Office of GeneralCounsel, and the Office of Housing. Arepresentative of the U.S. Department ofJustice (DOJ) also participated in theWorking Group.

The Department published a draftreport and policy statement on October26, 1999. On November 10, 1999, theDepartment convened a public meetingto listen to comments on the draftreport. The Department solicited writtencomments as well. The Departmentcarefully considered all of thecomments it received and has maderevisions accordingly so that the policystatement and Final Report reflects thepublic comments.

The Final Report consists of anIntroduction (preamble), this policystatement, and four reports on themodel building codes. The four modelbuilding code reports were prepared bySWA and have been reviewed andadopted by the Department.

The Final Report serves solely torespond to CABO’s request for technicalassistance and to provide technicalassistance to other interested parties onthis issue. The Department has not anddoes not intend to promulgate any newtechnical requirements or standards byway of this Final Report. TheDepartment does not intend this FinalReport to be considered an endorsementof any model building code.

The Department is not attemptingthrough the issuance of this FinalReport to shift its responsibility toenforce the design and constructionrequirements of the Act to any modelcode organization or to state and localbuilding code officials. However, theDepartment recognizes that animportant way to increase compliancewith the design and constructionrequirements of the Act is to incorporatethose requirements into state and localbuilding codes.



History of Fair Housing Act Design andConstruction Requirements

In 1988, Congress extended theprotections of the Fair Housing Act, 42U.S.C. 3601 et seq., the nation’s primaryhousing civil rights law, to families withchildren and to persons withdisabilities. 42 U.S.C. 3604. In responseto the serious lack of accessible housingin the United States, Congress providedthat all covered multifamily dwellingsbuilt for first occupancy after March 13,1991, include certain basic features ofaccessible and adaptive design. 42U.S.C. 3604(f)(3)(C). These basicaccessibility requirements are known asthe Act’s design and constructionrequirements.

The Act mandates that all coveredmultifamily dwellings built for firstoccupancy after March 13, 1991, shallbe designed and constructed so that:

(1) The public and common use areasare readily accessible to and usable bypersons with disabilities;

(2) All doors designed to allowpassage into and within all premises incovered dwellings are sufficiently wideto allow passage by persons usingwheelchairs;

(3) All premises within dwellingscontain the following features ofadaptive design:

(a) An accessible route into andthrough the dwelling;

(b) Light switches, electrical outlets,thermostats and otherenvironmental controls inaccessible locations;

(c) Reinforcements in bathroom wallsto allow later installation of grabbars; and

(d) Usable kitchens and bathroomsuch that an individual using awheelchair can maneuver about thespace.

42 U.S.C. 3604(f)(3)(C). Theseprovisions were incorporated in theDepartment’s Fair Housing AccessibilityGuidelines as seven requirements. Theunderlying concept behind the designand construction requirements is tocreate housing that is accessible forpersons with disabilities but which doesnot necessarily appear to be differentfrom conventional housing.

The Act’s design and constructionrequirements apply to ‘‘coveredmultifamily dwellings,’’ which arebuildings consisting of 4 or more unitsif such buildings have one or moreelevators; and ground floor units inother buildings consisting of 4 or moreunits. The terms ‘‘dwelling unit,’’‘‘ground floor,’’ and ‘‘building’’ all haveparticular meanings that are set forth inthe Act, the regulations, and theGuidelines. The Act’s design and

construction requirements apply to allcovered multifamily dwellings built forfirst occupancy after March 13, 1991.The Act’s design and constructionrequirements do not apply to alterationsor renovations to multifamily dwellingunits or to single-family detachedhouses.

The Act does not set forth specifictechnical design criteria that buildershave to follow in order to comply withthe design and constructionrequirements. It does provide, however,that compliance with the appropriaterequirements of the American NationalStandard Accessible and UsableBuildings and Facilities (commonlyreferred to as ANSI A117.1) wouldsatisfy the Act’s design and constructionrequirements for the interiors ofdwelling units. 42 U.S.C. 3604(f)(4).

In the Department’s 1989 regulationsimplementing the design andconstruction requirements of the FairHousing Act, the Departmentspecifically stated that compliance withthe appropriate requirements of ANSIA117.1–1986 suffices to satisfy therequirements of the Act relating tointeriors of dwelling units. 24 CFR100.205(e). The Department alsoreferences ANSI A117.1–1986 for thepublic and common use areas, in itsdefinition of ‘‘accessible.’’ At the timeCongress passed the Act, and theDepartment promulgated its regulations,the current version of ANSI A117.1 wasthe 1986 edition.

The Act emphasizes that Congress didnot intend the Department to requirestates and units of local government toinclude the Act’s accessibilityrequirements in their state and localprocedures for the review and approvalof newly constructed coveredmultifamily dwellings. However,Congress authorized the Department toencourage the inclusion of theserequirements into their procedures. 42U.S.C. 3604(f)(5)(C).

The Act makes it clear that it does notinvalidate or limit any other state orfederal laws that require dwellings to bedesigned or constructed in a mannerthat affords persons with disabilitiesgreater access than that required underthe Act. 42 U.S.C. 3604(f)(8).

Congress charged the Secretary ofHUD to ‘‘provide technical assistance tostates and units of local government andother persons to implement therequirements of paragraph 3(C) [settingforth the design and constructionrequirements].’’ 42 U.S.C. 3604(f)(5)(C).To this end, in order to properly meetthis obligation, on March 6, 1991, theDepartment published the ‘‘FairHousing Accessibility Guidelines,’’ (theGuidelines) published at 56 FR 9472–

9515, which set forth specific guidelinesfor designing dwelling units consistentwith the Fair Housing Act. On June 24,1994, the Department published its‘‘Supplement to Notice of Fair HousingAccessibility Guidelines: Questions andAnswers About the Guidelines,’’published at 59 FR 33362–33368 (theQuestions and Answers About theGuidelines).

Section I of the Guidelines states:These guidelines are not mandatory, nor do

they prescribe specific requirements whichmust be met, and which, if not met, wouldconstitute unlawful discrimination under theFair Housing Act. Builders and developersmay choose to depart from these guidelinesand seek alternate ways to demonstrate thatthey have met the requirements of the FairHousing Act. These guidelines are intendedto provide a safe harbor for compliance withthe accessibility requirements of the FairHousing Act. 56 FR at 9499.

The Department also published a FairHousing Act Design Manual (DesignManual). In addition to describing thedesign and construction requirements ofthe Act, the Design Manual providesfurther technical guidance of a practicalnature on the application of theGuidelines. The Design Manual alsoserves as a safe harbor for compliance.

CABO/ANSI A117.1–1992 and ICC/ANSI A117.1–1998 as Safe Harbors

Through its review of the SWA draftreports, the Department reviewed thetechnical standards in the CABO/ANSIA117.1–1992 and the ICC/ANSIA117.1–1998, particularly the latter’stechnical standards for the interiors ofdwelling units, called Type B dwellingunits, to determine whether these latereditions of ANSI meet the requirementsof the Act, the Guidelines, and the 1986edition of ANSI A117.1. The 1992 and1998 editions of ANSI A117.1 have beenadopted by several of the modelbuilding code associations. Mindful ofthe language of the Act, and having nowreviewed those technical standards, theDepartment believes that CABO/ANSIA117.1–1992 and ICC/ANSI A117.1–1998 are consistent with the Act and areadditional safe harbors for compliancewith the Act’s technical accessibilityrequirements. Therefore, theDepartment will soon be publishing aninterim rule amending certain sectionsof 24 CFR 100.200, to state thatcompliance with the appropriaterequirements of ICC/ANSI A117.1–1998,ANSI A117.1–1986, and CABO/ANSIA117.1–1992 suffices to satisfy therequirements of the Act related tointeriors of dwelling units and publicand common use areas. Additionally,the Department maintains its positionthat compliance with its Fair Housing



Accessibility Guidelines also constitutescompliance with the Act. The DesignManual also serves as a safe harbor forcompliance.

It is important to note that ANSIA117.1 contains only technical criteria,whereas the Fair Housing Act, theimplementing regulations, and theGuidelines contain both ‘‘scoping’’ andtechnical criteria. Scoping criteriadefine when a building element or spacemust be accessible; technical criteriaprovide the technical specifications onhow to make an element accessible.Therefore, designers and buildersrelying on ANSI A117.1 also need toconsult the Act and the Department’sregulations, or the Guidelines for thescoping criteria.

As a further note, the Departmentwishes to emphasize that the safeharbors for compliance outlined aboveapply only to the accessibilityrequirements of the Fair Housing Act,and do not constitute a safe harbor forcompliance for Federally fundedfacilities and dwelling units covered bySection 504 of the Rehabilitation Act of1973 (Section 504), 29 U.S.C. 794(a); 24CFR 8 and 9; the Architectural BarriersAct of 1968 (ABA), 42 U.S.C. 4151–4157; 24 CFR 40 and 41, which mustcomply with their respective regulatoryrequirements, including the UniformFederal Accessibility Standard (UFAS);and the Americans with Disabilities Actof 1990 (ADA), 42 U.S.C. 12101–12213.However, to the extent that therequirements of the Fair Housing Actoverlaps with the requirements ofSection 504, the ABA, or the ADA, it isnecessary to read the laws together andmeet the requirements of all applicablelaws.

Enforcement of the Fair Housing ActDesign and Construction RequirementsWhere a State Has Adopted a BuildingCode That Conforms to the Act

The Act makes it clear that while stateand local building code officials areresponsible for enforcing the buildingcode standards adopted in theirrespective jurisdictions, 42 U.S.C. 3604(f)(5)(B); 24 CFR 100.205(g), theDepartment is responsible for enforcingthe design and constructionrequirements of the Fair Housing Act.42 U.S.C. 3604(f)(6)(A), 3610. If ajurisdiction adopts a model buildingcode that HUD has determinedconforms with the design andconstruction requirements of the Act,then covered residential buildings thatare constructed in accordance withplans and specifications approvedduring the building permitting processwill be in compliance with therequirements of the Act, unless the

building code official has waived one ormore of those requirements, or thebuilding code official has incorrectlyinterpreted or applied the building codeprovisions.

However, the fact that a jurisdictionhas adopted a code that conforms withthe accessibility requirements of theAct, or that construction of a residentialbuilding was approved under a code,does not change the Department’sstatutory responsibility to conduct aninvestigation based on receipt of acomplaint from an aggrieved person todetermine whether the requirements ofthe Act have been met. 42 U.S.C.3604(f)(6)(A); 24 CFR 100.205(h).Section 804 of the Act provides that:‘‘determinations by a State or unit ofgeneral local government underparagraphs 5(A) and (B) shall not beconclusive in enforcement proceedingsunder this title.’’ 42 U.S.C. 3604(f)(6)(B).

Fair Housing Act Procedures When aDesign and Construction Complaint isFiled

The Department is required toconduct investigations of housingdiscrimination in response to acomplaint filed with the Department. 42U.S.C. 3610; 24 CFR 103.200.Discrimination complaints may be filedby an individual or organization that isan ‘‘aggrieved person’’ under the Act. 42U.S.C. 3602(i)–(j); 24 CFR 103.15. Adiscrimination complaint may also befiled by the Secretary or his designee,the Assistant Secretary for Fair Housingand Equal Opportunity. 42 U.S.C.3610(a); 24 CFR 103.15.

When a complaint is filed with theDepartment, all of the parties to acomplaint are notified of its receipt. 42U.S.C. 3610(a)(1)(B)(i)(ii); 24 CFR 103.45and 103.50. The Department thenconducts an investigation to determinewhether there is reasonable cause tobelieve that the allegations in thecomplaint are true. 42 U.S.C.3610(a)(1(B)(iv); 24 CFR 103.200. TheDepartment also attempts to resolvehousing discrimination complaintsthrough conciliation. 42 U.S.C.3610(b)(1); 24 CFR 103.300. If theDepartment finds that there isreasonable cause to believe that theallegations of unlawful discriminationare true, and attempts to resolve thecomplaint through conciliation havefailed, then the Department issues acharge of discrimination. 42 U.S.C.3610(g)(1)–(2); 24 CFR 103.400(a)(2).The parties then have the right to electto pursue litigation through theDepartment’s administrativeadjudicative process or in federaldistrict court. 42 U.S.C. 3612(a); 24 CFR103.410.

The Department refers to theappropriate administrative agency acomplaint that arises in a jurisdictionthat has been determined to have a stateor local law that provides rights andremedies substantially equivalent to theAct, and which has a CooperativeAgreement with the Department toprocess housing discriminationcomplaints. 42 U.S.C. 3610(f); 24 CFR103.100. Additionally, the United StatesDepartment of Justice (DOJ) hasauthority to commence litigation whenit determines that there is a pattern orpractice of discrimination. 42. U.S.C.3614(a); 24 CFR 103.500.

When the Department receives apotential housing discriminationcomplaint alleging violations of thedesign and construction requirements ofthe Act, it first makes an initialdetermination whether it hasjurisdiction to investigate the complaint.In making that determination, theDepartment examines whether: (1) Theperson or organization filing thecomplaint alleges an injury because ofthe fact that the property in questionwas not designed and constructed tomeet the accessibility requirements ofthe Act; (2) The complaint was filedwithin one year of the date on which thealleged discrimination occurred orterminated; (3) The Department hasjurisdiction over the owners,developers, architects and othersinvolved in the design and constructionwho are named in the complaint (therespondents); and (4) The property is a‘‘covered multifamily dwelling’’ underthe Act that was designed andconstructed for first occupancy afterMarch 13, 1991.

An investigation of an accessibilitydiscrimination complaint under the Acttypically involves a review of buildingpermits and certificates of occupancy,plans and specifications showing thedesign of the buildings and the site, andan on site inspection of the property.During the investigation, Departmentinvestigators or contractors takesmeasurements of relevant interior andexterior elements on the property. Allparties to the complaint have anopportunity to present evidenceconcerning whether the Department hasjurisdiction over the complaint, andwhether the Act has been violated asalleged.

In making a determination whetherthe design and constructionrequirements of the Act have beenviolated, the Department uses thelanguage of the Act, the regulations, theGuidelines, and the technical standardsfor the interiors of dwellings and forpublic and common use areas found inthe ANSI A117.1–1986 standard. The



respondents to the complaint have anopportunity to demonstrate that therequirements of the Act have been meteven if the standards in the Guidelines,the Design Manual, or ANSI A.117.1–1986 have not been met. Uponpublication of an interim ruleannouncing the Department’s positionthat ICC/ANSI A117.1–1998 and CABO/ANSI A117.1–1992 also constitute safeharbors for compliance, as explainedearlier in this policy statement, theDepartment will also consider evidenceprovided by a respondent showing thatthe respondent has complied with eitherof those editions of ANSI A117.1.

When the Department or DOJ findsthat the design and constructionrequirements of the Act have beenviolated, the Department or DOJ seek toremedy the violation, includingappropriate remedies for the victim ofdiscrimination. Where technically andotherwise feasible, the Department orDOJ seek to have the property retrofittedso that it meets the requirements of theAct. The requirement to retrofit applieseven though a building code may notrequire properties to be altered in orderto meet the requirements of the Act.Where it is not feasible to retrofit theproperty, the Department or DOJ explorewith all parties other remedies that willprovide accessible housingopportunities for persons withdisabilities.

Other Accessibility StandardsNothing in the Act precludes a

jurisdiction from adopting accessibilitystandards that provide a greater degreeof accessibility than is required underthe Act. 42 U.S.C. 3604(f)(7). Inaddition, residential properties may besubject to more than one accessibilitystandard. For example, when aresidential property receives federalfinancial assistance, it must complywith the accessibility requirements ofSection 504, 24 CFR 8.1, et seq.; andmay also be subject to the ABA.

The Americans with Disabilities Act(the ADA) also contains accessibilityrequirements, which have beenincorporated in the Americans withDisabilities Act Standards for AccessibleDesign (ADA Standards), 28 CFR Part36, Appendix A (1999). Therequirements of Title II of the ADA,which prohibits discrimination on thebasis of disability by public entities,apply, in relevant part, to housing thatis designed and constructed by a stateor local governmental entity (includinga public housing authority). 42 U.S.C.12131–12134. The requirements of TitleIII of the ADA, which prohibitsdiscrimination by private owners oroperators of public accommodations,

apply, in relevant part, to commercialfacilities and public accommodations inconnection with housing. 42 U.S.C.12181–12189.

The Department wishes to stress thatdevelopments may be subject to morethan one accessibility requirement andall applicable laws must be readtogether. If the Fair Housing Act’saccessibility requirements apply to adevelopment that is also subject to theADA, Section 504 or the ABA, the FairHousing Act requirements do notpreempt the ADA, Section 504 or ABArequirements.

Conclusion

Overall, the Final Reportacknowledges that the model buildingcodes reflect the majority of thetechnical requirements of the Act. Inaddition, the Final Report found that allfour model building codes appliedaccessibility requirements to most, butnot all, of the covered multifamilydwellings that are subject to the designand construction requirements of theAct. The Final Report identifies areaswhere the model building codes need tobe revised in order to ensure that theyare consistent with the requirements ofthe Act, and makes recommendations toassist the model building codeorganizations in developing modelbuilding codes that are consistent withthe design and constructionrequirements of the Act.

Chapter 3: International Building CodeAnalysis

I. Purpose

The purpose of this report is toidentify provisions of the InternationalBuilding Code (IBC) First Draft andproposed Chapters 10, 11, Appendix toChapter 11, and Section 3407 of theInternational Building Code 2000 (IBC2000) that do not meet the requirementsof the Fair Housing Act (the Act), theDepartment’s regulations implementingthe Act (the regulations), or the FairHousing Accessibility Guidelines (theGuidelines). Where variances areidentified, recommendations areprovided for how the IBC should berevised to meet the requirements of theAct, the regulations, or the Guidelines.

Where an IBC Section citation refersto ‘‘IBC 2000’’ in this report, it is for thepurpose of reflecting revisions tosubstance or numbering of the Sectionthat were made from the First Draft ofthe IBC to the proposed IBC 2000. If thecitation does not include a reference tothe proposed IBC 2000, it is SWA’sunderstanding that there is nodifference in substance between the IBCand the proposed IBC 2000. However, it

should be noted that some chapters ofthe proposed IBC 2000, notably Chapter3, were not available for review at thetime of this report.

II. MethodologyThe analysis of the IBC by the

Department and Steven WinterAssociates, Inc. (SWA), its contractor,consisted of the following:—A review of the language of the Act, 42

U.S.C. 3604 (f)(3)(C), the regulations, 24CFR 100.201 and 205, the Guidelines,’’ 56FR at 9472–9515 (March 6, 1991), and the‘‘Supplement to Notice of Fair HousingAccessibility Guidelines: Questions andAnswers About the Guidelines,’’ 59 FR33362–33368 (June 28, 1994) (theQuestions and Answers About theGuidelines).

—A review of the December 15, 1997,copyrighted comparative matrix developedby the International Code Council, Inc.(ICC), Building Officials & CodeAdministrators International, Inc. (BOCA),International Conference of BuildingOfficials (ICBO), Southern Building CodeCongress International, Inc. (SBCCI), andthe Council of American Building Officials(CABO). The matrix consists of a side-by-side comparison of the Guidelines with thecorresponding accessibility provisions ofthe three national model building codesand the IBC. The analysis of the IBC beganwith a review of the column of the matrixthat includes the IBC’s accessibilityrequirements and comparing them with thecolumn that includes the provisions of theGuidelines. The matrix review wasconducted to identify apparent variancesbetween IBC’s accessibility requirementsand those of the Act, the regulations, andGuidelines.

—A review of the accessibility provisions ofthe IBC, First Draft, November 1997, hereinreferred to as the IBC; and a review ofapplicable referenced codes and standards,including: American National StandardsInstitute (ANSI) A117.1–1986, which isreferenced in the regulations, and ICC/ANSI A117.1–1998. The IBC, First Draft,November 1997, refers to CABO/ANSIA117.1–1992 for the technical provisionsfor accessibility. In the July 1998, FinalDraft, the title of the referenced standardwas editorially revised from CABO A117.1to ICC/ANSI A117.1–1998 to reflect thechange in the secretariat. Proposed changesto the Final Draft to be included in the IBC2000 include changing the title of thereferenced standard to ICC A117.1–1998.However, this standard is herein referred toas ICC/ANSI A117.1–1998. Because thematrix did not include full text of thetechnical provisions, it was necessary touse these standards as companiondocuments in assessing the matrix, theGuidelines, and the IBC. They werereviewed to identify any variances from theAct, regulations, or Guidelines in thetechnical provisions required by each.

—Interviews with Kim Paarlberg, BOCA StaffArchitect and the liaison to the IBC Meansof Egress/Accessibility Committee, to gaininsight into how the ICC responds to



variances that were identified. SWA foundit necessary to understand ICC’sinterpretations of its own requirements thatmay not be apparent when reviewing codetext.

—A review of the August 23, 1999 update tothe December 15, 1997 comparative matrix,prepared by BOCA. The updated matrixcompared the Guidelines with theNovember 1997 First Draft InternationalBuilding Code and the proposed IBC 2000.The updated matrix includes the final textof any changes to the first draft subject tofinal approval by ICC.

—A review of the proposed IBC 2000Chapters 10 and 11, Section 3407, and theAppendix to Chapter 11. Hereafter, allreferences to IBC 2000 refer to thesechapters only. They were used to crosscheck sections of the updated matrix thatindicated changes to the first draft to beincluded in the IBC 2000. The updatedmatrix included ‘‘challenges,’’ or proposedchanges to the Final Draft, that were votedon during hearings on September 12–17,1999. The analysis was completed basedon information from ICC that thechallenges did not pass.

The Department formed a Model CodeWorking Group consisting ofrepresentatives from the Office of FairHousing and Equal Opportunity, theOffice of General Counsel, and theOffice of Housing. A representative ofthe U.S. Department of Justice (DOJ)also participated in the Working Group.The Working Group conferred withSWA by conference call on September15, 1999, asking questions and makingcomments and suggestions about theanalysis. This meeting led to furtherconversations between SWA and KimPaarlberg, and conversations betweenDepartment staff and other code staff.

The draft report was made availablefor public comment on October 26,1999, and a public meeting on the draftreport was held on November 10, 1999.In addition to oral testimony, andwritten testimony provided at the publicmeeting, the Department received 30written comments on the report. Thesewritten comments included one set ofconsolidated comments from a group oforganizations. All comments werereviewed and considered. The FinalReport incorporates many of thosecomments and has been revised fromthe draft report.

III. The International Building CodeThe International Code Council (ICC)

is an umbrella organization created in1994 to assist common codedevelopment. The InternationalBuilding Code (IBC) represents an effortto bring national uniformity to buildingcodes. Drafts of the proposed code weredeveloped by representatives of thethree national model code bodies: TheBuilding Officials and Code

Administrators International (BOCA),Inc., the International Conference ofBuilding Officials (ICBO), and theSouthern Building Code CongressInternational (SBCCI), Inc.

The IBC includes provisions foraccessibility intended to reflect theintent of the Act, the regulations and theGuidelines. Chapter 11 of the Code,‘‘Accessibility’’ addresses theaccessibility provisions of the Act. Anyjurisdiction that adopts the IBC 2000code must follow these accessibilityprovisions.

A Working Draft of the IBC waspublished in May, 1997. This draft wasrevised to include approved changesand was published as the First Draft,November 1997. The first draft wasrevised to include approved changesand was published as the Final Draft,July 1998. Hearings on the proposedchanges to the Final Draft were held inSeptember, 1999. The IBC 2000 Editionis now scheduled to be published. TheIBC 2000 consists of the IBC Final Draftplus all approved 1999 Cycle changes.(ICC has informed SWA that November1, 1999, is the start of the next codedevelopment cycle, called the 2000Cycle during which the ICC will addressproposed changes to the 2000 Edition.The 2000 Cycle will end in Septemberof 2000, and approved changes fromthat cycle, along with approved changesfrom the subsequent 2001 Cycle and a2002 Cycles, will be incorporated andwill constitute the 2003 Edition of theIBC.)

Unlike the Act, the IBC is a modelbuilding code and not a law. It providesminimum standards for public safety,health and welfare as they are affectedby building construction. Compliancewith the IBC is not required unlessadopted by reference by a jurisdiction’sboard, council, or other authoritativegoverning body. Jurisdictions may adopta model building code in its entirety orwith modifications; hence, the buildingcodes are referred to as ‘‘model codes.’’

Historically, model building codeshave required that a certain percentageor number of dwelling units in definedresidential uses meet the standards foraccessibility that have been defined inversions of ANSI A117.1 prior to 1998.These dwelling units are referred to inthe IBC in Section 1102 as a ‘‘Type Adwelling unit.’’ ICC/ANSI A117.1–1998is the first edition of ANSI A117.1 toinclude technical standards for what isreferred to as a ‘‘Type B dwelling unit.’’The ICC/ANSI A117.1 does not define aType B unit, however, Section 101 ofthe standard states: ‘‘Section 1003 ofthis standard provides technical criteriafor Type B dwelling units. These criteriaare intended to be consistent with the

intent of only the technicalrequirements of the Federal FairHousing Amendments Act AccessibilityGuidelines. These Type B dwellingunits are intended to supplement, notreplace, accessible Type A dwellingunits as specified in this standard.’’ SeeICC/ANSI A117.1–1998, Section 101.Therefore, the purpose of the ICC/ANSIA117.1–1998 technical criteria for TypeB dwelling units is to incorporatetechnical provisions for the interiors ofdwelling units, intended to beconsistent with the Act, the regulations,and the Guidelines. It is important tonote, however, that ICC/ANSI A117.1–1998 does not contain scopingprovisions. The importance of thisdistinction is discussed below.

In the IBC 2000, Section 1102 definesType B dwelling units as follows: ‘‘Adwelling unit designed and constructedfor accessibility in accordance with ICC/ANSI A117.1, intended to be consistentwith the technical requirements of fairhousing required by federal law.’’

As noted under ‘‘Methodology,’’above, the IBC references the ICC/ANSIA117.1–1998 standard, but in the code,the reference is to ‘‘ICC A117.1.’’ Thereference to ‘‘ANSI’’ has been dropped.While not a variance, the Departmentrecommends that the IBC considerreinstating the use of ‘‘ANSI’’ in thetitle, since the Act itself references theANSI A117.1 standard.

IV. Scoping ProvisionsBuilding codes have two major

components that are relevant to thisanalysis. One component describes thetechnical standards that should beapplied during the design andconstruction or alteration of a buildingor structure or elements within astructure. The other component is adescription of the types of buildings orstructures or elements within a structureto which the technical standards areapplied. The provisions in this secondcomponent are referred to as ‘‘scoping’’provisions. This section of the analysissets forth areas where the scopingprovisions of the IBC do not include allof the dwelling units, buildings, or usesthat are covered by the Act, theregulations, or the Guidelines. Thisanalysis of the scoping provisions of theIBC included an examination of thefollowing:

IBC’s definition of dwelling unit, building,structure, and ground floor dwelling unit;

IBC’s classification of residential buildingsaccording to use and occupancy; and IBC’sscoping of dwelling units to which theaccessibility provisions apply.

Based on the First Draft of the IBC,those chapters of the proposed IBC 2000that were available for review, and



conversations with representatives ofthe ICC, the Department and SWAconcludes in this analysis that theproposed IBC 2000 covers most of thesame dwelling units, buildings andresidential uses as do the Act, theregulations, and the Guidelines. Forexample, the Department and SWAconcluded that, in buildings with fouror more dwelling units, apartments,custom-designed condominiums,multistory units with internal elevators,single-story townhouses and modularunits are covered; and additions of fouror more dwelling units to existingbuildings are included within the IBC’sscoping requirements for Type Bdwelling units.

However, the Department and SWAhave concluded that the followingprovisions of the proposed IBC 2000 donot or may not include ‘‘coveredmultifamily dwellings’’ as they aredefined in the Act, the regulations, andGuidelines.

Definition of ‘‘Dwelling Unit’’—(DraftRecommendation #1)

The regulations define the term‘‘dwelling unit’’ as:

A single unit of residence for a familyof one or more persons. Examples ofdwelling units include: a single familyhome; an apartment unit within anapartment building; and in other typesof dwellings in which sleepingaccommodations are provided buttoileting or cooking facilities are sharedby occupants of more than one room orportion of the dwelling, rooms in whichpeople sleep. Examples of the latterinclude dormitory rooms and sleepingaccommodations in shelters intendedfor occupancy as a residence forhomeless persons.24 CFR 100.201. It is clear from thediscussion in the preamble to theregulations, 54 FR 3232–3317 (Jan. 23,1989) (the preamble), that theDepartment intended that each sleepingroom occupied by a separate householdin a building with shared toileting orkitchen facilities would be considered aseparate dwelling unit, and thatbuildings with four or more of thesesleeping accommodations are ‘‘coveredmultifamily dwelling units’’ forpurposes of the Act. 54 FR at 3244.

Of course, a detached building thathas four or more sleeping rooms withshared toileting or kitchen facilities andthat is intended for occupancy by onehousehold is not considered to be a‘‘covered multifamily dwelling’’ underthe Act. For example, a detached singlefamily house with four bedroomsoccupied by four or more personsrelated by birth or marriage is not a‘‘covered multifamily dwelling.’’ In

addition, a single family house occupiedby four or more unrelated persons thatfunctions as one distinct household,such as what is commonly referred to asa ‘‘group home,’’ would not beconsidered to be a ‘‘covered multifamilydwelling’’ for purposes of theapplication of the design andconstruction requirements of the Act.This latter example is consistent withcase precedent and the position of theDepartment and the Department ofJustice with respect to the application ofzoning and land use restrictions tosingle family group homes.

The IBC defines the term ‘‘dwellingunit’’ in Section 310.2, Definitions, asfollows: ‘‘A single unit providingcomplete, independent living facilitiesfor one or more persons, includingpermanent provisions for living,sleeping, eating, cooking andsanitation.’’ The IBC does not considersleeping accommodations intended foroccupancy by separate households in abuilding with shared toileting or kitchenfacilities to be dwelling units.

In general, the IBC 2000 (1107.5.4)applies the accessibility requirements ina Type B dwelling unit to occupanciesin Group R–2 containing four or moredwelling units and in occupancies inGroup R–3 where there are four or moredwelling units in a single structure. Thelist of R–2 occupancies includes non-transient boarding houses anddormitories, as well as fraternity andsorority houses. Dormitories are listedin both the regulations and theGuidelines as being covered under theAct’s accessibility requirements.Subsequent interviews withrepresentatives of ICC have clarified thatthe IBC does not define a dormitoryroom whose occupants share kitchen orbathroom space with the other residentsof that building as a ‘‘dwelling unit.’’According to ICC representatives, thereis no circumstance in which the IBCconsiders a separate sleeping room to be‘‘dwelling unit.’’

In its draft report, SWA proposedrevising the IBC definition of ‘‘dwellingunit’’ to be consistent with theregulations, to include sleeping roomsoccupied by separate households. Inresponse to comments on the draftreport, the Department determined thatit would withdraw thisrecommendation. Instead,recommendations respecting thescoping requirements of Chapter 11have been revised to add references toboth dwelling units and ‘‘sleepingaccommodations’’ as defined by the IBCin chapter 1. See Recommendation 2,below. Therefore, the formerRecommendation Number 1 has beeneliminated.

Dwelling Unit, Type BThe IBC 2000 (1102) defines

‘‘Dwelling Unit, Type B’’ as a dwellingunit designed and constructed foraccessibility in accordance with ICC/ANSI A117.1–1998, intended to beconsistent with the technicalrequirements of fair housing required byfederal law. The IBC 2000 (1102) alsodefines Dwelling Unit, Type A as adwelling unit designed and constructedfor accessibility in accordance with ICC/ANSI A117.1–1998. The Department hasdetermined that the difference in thedefinitions of Type A and Type B unitsis unclear. In addition, by referring to‘‘fair housing required by federal law’’in the definition of Dwelling Unit, TypeB, it may be incorrectly inferred thatthis encompasses all federal laws,including, for example, the Americanswith Disabilities Act (ADA) of 1990, andSection 504 of the Rehabilitation Act of1973 (Section 504). Type B dwellingunits are intended to be consistent withthe federal Fair Housing Act only.

Recommendation Number 1

It is recommended that the proposedIBC 2000 be revised to include amodification of the definition ofDwelling Unit, Type B (1102) as follows:

Dwelling Unit, Type B: A dwellingunit designed and constructed foraccessibility in accordance withICC/ANSI A117.1–1998, intendedto be consistent with the design andconstruction requirements of thefederal Fair Housing Act.

Residential Care/Assisted LivingFacilities—(Draft RecommendationsNumbers 1 and 3)

The Act defines a ‘‘dwelling’’ as ‘‘anybuilding, structure, or portion thereofwhich is occupied as, or designed orintended for occupancy as, a residenceby one or more families.’’ 42 U.S.C.3602 (b). Such a building may servemore than one purpose. Some buildings,known as continuing care facilities,residential care facilities, or assistedliving facilities, serve both as aresidence for their occupants and as aplace where the occupants receivepersonal, medical or other supportservices.

The Questions and Answers Aboutthe Guidelines addressed the issue ofwhether the design and constructionrequirements of the Act apply tocontinuing care facilities whichincorporate housing, health care andother types of services. That publicationstates:

The new construction requirements of theFair Housing Act would apply to continuingcare facilities if the facility includes at least



one building with four or more dwellingunits. Whether a facility is a ‘‘dwelling’’under the Act depends on whether thefacility is to be used as a residence for morethan a brief period of time. As a result, theoperation of each continuing care facilitymust be examined on a case-by-case basis todetermine whether it contains dwellings. 59FR at 33364.

According to the IBC, most of thesetypes of facilities, referred to by the IBCas Residential Care/Assisted Livingfacilities, are classified as R–4, I–1, or I–2 occupancies and are not required tocomply with the proposed IBC 2000,Section 1107.5.4, Accessible dwellingunits. According to the IBC, Section310.2, Definitions, the term ‘‘ResidentialCare/Assisted Living Facilities’’ isdefined as follows:

A building or part thereof housing amaximum of sixteen (16) or less persons, ona 24-hour basis, who because of age, mentaldisability or other reasons, live in asupervised residential environment whichprovides personal care services. Theoccupants are mostly capable of respondingto an emergency situation without physicalassistance from staff. The classification shallinclude residential board and care facilities,assisted living facilities, halfway houses,group homes, congregate care facilities, socialrehabilitation facilities, alcohol and drugabuse centers and convalescent facilities.Residential Care/Assisted Living Facilitieshousing more than sixteen (16) persons shallbe classified as a Group I–1.

If a Residential Care/Assisted LivingFacility has between 6 and 16occupants, it is classified as R–4, andnot covered under the proposed IBC2000 1107.5.4. In group R–4, at least oneof the sleeping rooms and associatedtoilet and bathing facilities shall beaccessible. (IBC 2000 Section 1107.5.7.)

The only instance where a ResidentialCare/Assisted Living Facility is requiredto comply with the proposed IBC 2000Section 1107.5.4, Accessible dwellingunits, is if the facility has five or lessoccupants, regardless of whether theoccupants are capable of selfpreservation. Sections 308.2; 308.3. Inthat case, they are classified as R–3occupancies, which are required tocomply with the proposed IBC 2000Section 1107.5.4, Accessible dwellingunits, if they have four or more dwellingunits as defined by the IBC.

If the same facility has more than 16occupants who are mostly capable ofresponding to an emergency situationwithout physical assistance from staff, itis classified as I–1. Section 308.2, GroupI–1, is defined by the IBC as follows:

This occupancy shall include a building orpart thereof housing more than 16 persons,on a 24-hour basis, who because of age,mental disability or other reasons, live in asupervised residential environment but

which provides personal care services. Theoccupants are mostly capable of respondingto an emergency situation without physicalassistance from staff. Where accommodatingpersons of the above description, thefollowing types of facilities shall be classifiedas I–1 facilities: residential board and carefacilities, assisted living facilities, half-wayhouses, group homes, congregate carefacilities, social rehabilitation facilities,alcohol and drug centers and convalescentfacilities.

In occupancies classified as I–1, at least4% of the sleeping rooms and their bathingand toilet facilities must be accessible. (IBC2000 1107.3.1.)

If the occupants of a facility withmore than five occupants are notcapable of responding to an emergencysituation without physical assistancefrom staff, the facility is classified as I–2. Section 308.3, Group I–2, is definedby the IBC as follows:

This occupancy shall include buildingsand structures used for medical, surgical,psychiatric, nursing or custodial care on a 24-hour basis of more than five persons who arenot capable of self-preservation. Whereaccommodating persons of the abovedescription, the following types of facilitiesshall be classified as I–2 facilities: hospitals,nursing homes (both intermediate carefacilities and skilled nursing facilities),mental hospitals and detoxification facilities.A facility such as the above with five or lesspersons shall be classified as a residentialoccupancy.

For nursing homes in Group I–2, atleast 50% of the patient facilities andtheir bathing and toilet facilities must beaccessible. (IBC 2000 1107.3.2).

The fact that a facility covered underR–4, or I–1, such as a group home, maybe considered to be a ‘‘single family’’residence for zoning and land use orother purposes, does not preclude itsinclusion in the R–4 or I–1 classificationof the IBC. Additionally, a group homeor assisted living facility receivingfederal financial assistance may berequired under the applicable HUDprogram regulations to comply with thedesign and construction requirements ofthe Act, as well as the accessibilityrequirements of Section 504 of theRehabilitation Act of 1973, 29 U.S.C.794(a), and, where appropriate, theaccessibility requirements of theAmericans with Disabilities Act of 1990,42 U.S.C. 12101, et seq.

The scoping provisions of the IBCwith respect to ‘‘Residential Care/Assisted Living’’ facilities do not meetthe requirements of the Act, theregulations, or the Guidelines, becausethe classification of these facilities as R–4, I–1, or I–2 may exclude from coveragedwelling units within those facilitiesthat would be covered by the Act, theregulations and the Guidelines.

Recommendation Number 2 (DraftRecommendation 1 and 3)

To ensure that the IBC covers thesame dwelling units required to provideaccessibility according to the Act, theregulations, and the Guidelines, it isrecommended that the proposed IBC2000 be revised as follows:

Modify Sections 1107.3, 1107.3.1,1107.3.2, 1107.4, 1107.5.1, and 1107.5.7as follows:

1107.3.1 Group I–1. In occupancies inGroup I–1, at least 4 percent, but notless than one, of the residential sleepingrooms and their bathing and toiletfacilities shall be accessible. In addition,in residential board and care facilities,assisted living facilities, group homes,congregate care facilities, andconvalescent facilities of Group I–1occupancies, in structures with four ormore sleeping accommodationsintended to be occupied as a residence,every sleeping accommodation intendedto be occupied as a residence shallcomply with the requirements for TypeB dwelling units as required by Section1107.5.4 with the same exceptions asprovided for in Section 1107.5.4.

1107.3.2 Group I–2. In nursing homesof Group I–2, at least 50 percent, but notless than one, of the patient sleepingrooms and their bathing and toiletfacilities shall be accessible. In addition,in nursing homes of Group I–2 instructures with four or more sleepingaccommodations intended to beoccupied as a residence every sleepingaccommodation intended to beoccupied as a residence shall complywith the requirements for Type Bsleeping accommodations required bySection 1107.5.4 with the sameexceptions as provided for in Section1107.5.4.

1107.4 Care facilities. Occupanciescontaining care facilities (Group E, I–2and I–4) shall be accessible as providedin this chapter.

Exception: Where a care facility ispart of a dwelling unit, only the portionof the structure utilized for the carefacility is required to be accessible. InNursing homes of Group I–2 where acare facility is part of a dwelling unit orsleeping accommodation intended to beoccupied as a residence in structureswith four or more dwelling units orsleeping accommodations intended tobe occupied as a residence, everydwelling unit and sleepingaccommodation intended to beoccupied as a residence shall complywith the requirements for Type Bdwelling units and Type B sleepingaccommodations required by Section1107.5.4 with the same exceptions asprovided in Section 1107.5.4.



1107.5.1 Accessible sleepingaccommodations. In occupancies inGroups R–1 and R–2 with sleepingaccommodations, accessible sleepingaccommodations shall be provided inaccordance with Table 1107.5.1. Inaddition, In Group R–1 occupanciesintended to be occupied as a residence,R–2, R–3, and R–4 occupancies instructures with four or more sleepingaccommodations intended to beoccupied as a residence, every sleepingaccommodation intended to beoccupied as a residence shall complywith the requirements for Type Bsleeping accommodations as required bySection 1107.5.4 with the sameexceptions as provided for in Section1107.5.4.

Exception: Group homes intended tobe occupied by a single household anddetached single-family homes occupiedby a single household.

Modify 1107.5.4, as follows:1107.5.4 Accessible dwelling units. In

occupancies in Group R–2 and R–3where there are four or more dwellingunits or sleeping accommodationsintended to be occupied as a residencein a single structure, every dwelling unitand sleeping accommodation intendedto be occupied as a residence shall beType B. Dwelling units required to* * * (the rest of 1107.5.4 remains as itcurrently appears in the IBC).

Exceptions:1. Where no elevator service is

provided in a building, Type A and Bdwelling units and Type B sleepingaccommodations need not be providedon floors other than the ground floor* * *

2. Where no elevator service isprovided in a building and the groundfloor does not contain dwelling units orsleeping accommodations intended tobe occupied as a residence, only thosedwelling units and sleepingaccommodations intended to beoccupied as a residence located on thelowest floor containing dwelling unitsor sleeping accommodations intended tobe occupied as a residence need complywith the requirements of this section.

3. A multistory dwelling unit * * *4. The number of Type B dwelling

units and Type B sleepingaccommodations provided in multiplenon-elevator buildings on a single site isallowed to be reduced to a percentage ofthe ground floor dwelling units andsleeping accommodations intended tobe occupied as a residence which isequal to the percentage of the entire sitehaving grades, prior to development,which are less than 10 percent; but inno case shall the number of Type Bdwelling units or Type B sleepingaccommodations be less than 20 percent

of the ground floor dwelling units orground floor sleeping accommodationsintended to be occupied as a residenceon the entire site.

5. The required number of Type Aand Type B dwelling units and Type Bsleeping accommodations shall notapply. * * *

1107.5.7 Group R–4. In Group R–4, atleast one of the sleeping rooms andassociated toilet and bathing facilitiesshall be accessible. In addition, in R–4occupancies in structures with four ormore sleeping accommodationsintended to be occupied as a residence,every sleeping accommodation intendedto be occupied as a residence shallcomply with the requirements for TypeB sleeping accommodations required bySection 1107.5.4 with the sameexceptions as provided for in Section1107.5.4.

Note: See other changes to Exceptions 4and 5 under new Recommendations 5, 6 and7 later in this report.

Transient Housing—(DraftRecommendation Number 2)

In its Draft Recommendation 2, HUDproposed that the IBC be revised tomake clear that certain types of housingthat the IBC viewed as transient aredwellings subject to the requirements ofthe Fair Housing Act, including thedesign and construction requirements.This housing may include timeshares,residential hotels and motels, andhomeless shelters. The IBC uses a 30-day measure as the means to determinewhether a building is for transient useand thus not a dwelling subject to theAct or chapter 11.

A 30-day measure is inappropriate indetermining whether a building iscovered by the Act. The IBC’s 30-daytest of transience is inappropriatebecause it misleads designers, buildersand other readers of the code that suchhousing need not meet the requirementsof the Act. Length of stay is only onefactor in determining whether abuilding is a ‘‘covered multifamilydwelling. Other factors to be consideredinclude: (1) Whether the rental rate forthe unit will be calculated based on adaily, weekly, monthly or yearly basis;(2) Whether the terms and length ofoccupancy will be established through alease or other written agreement; (3)What amenities will be included insidethe unit, including kitchen facilities; (4)How the purpose of the property ismarketed to the public; (5) Whether theresident possesses the right to return tothe property; and (6) Whether theresident has anywhere else to which toreturn.

Accordingly, because the above-described types of housing which are

subject to the Act are not required tomeet IBC Chapter 11 requirements fordwelling units, the IBC is not consistentwith the Act, the regulations and theGuidelines. At this time, the Departmentis uncertain how best to resolve thisinconsistency between the IBC and theDepartment’s regulations. Therefore, theDepartment is withdrawing DraftRecommendation Number 2. TheDepartment will continue to work withICC and other interested organizationsto develop language that appropriatelyconveys to builders and designers thatcertain residencies of less than 30 daysmust meet the Act’s accessibilityrequirements. In the meantime, theDepartment believes the factors listedabove must be considered by owners,builders, developers, designers andarchitects in determining whether therequirement of the Act apply to thedesign and construction of buildingswith rooms for short term occupancy.

Ground Floor—(Draft RecommendationNumber 4)

The regulations define ‘‘ground floor’’as a ‘‘floor of a building with a buildingentrance on an accessible route. Abuilding may have one or more groundfloors.’’ 24 CFR 100.202. The Guidelinesfurther state: ‘‘Where the first floorcontaining dwelling units in a buildingis above grade, all units on that floormust be served by a building entranceon an accessible route. This floor will beconsidered to be a ground floor.’’ 56 FRat 9500.

If a building is built into a hill, forexample, and the front and the back ofthe building have entrances to dwellingunits at grade, but at differentelevations, the ground floor dwellingunits on both levels are covered underthe Guidelines. See the Questions andAnswers About the Guidelines questionnumber 6. 59 FR at 33364.

The IBC defines a Dwelling Unit,Ground Floor as: ‘‘A dwelling unit witha primary entrance and habitable spaceat grade.’’ (1102.1)

IBC 2000 Exception 1, Section1107.5.4, Accessible dwelling units,states that where no elevator service isprovided in a building, Type B dwellingunits need not be provided on floorsother than the ground floor. The IBC’sdefinition of ‘‘dwelling unit, groundfloor’’ does not specifically provide thata building can have more than oneground floor. For example, if a buildingis built into a hill, and the front and theback of the building have entrances todwelling units at grade, but at differentelevations, the ground floor dwellingunits on both levels are covered underthe Guidelines. The proposed IBC 2000is not clear that there may be more than



one ground floor or ground floor unitson different levels of a building.

In its draft report for public comment,the Department offered arecommendation that the IBC 2000define ground floor to match theregulations and the Guidelines, anddelete the definition of ‘‘dwelling unit,ground floor’’ from Section 1102. Inaddition, the Department recommendedthat Exception 1 to Section 1107.5.4 bemodified to recognize that there may bemore than one ground floor. As theDepartment stated in the introduction tothis report, it is mindful of the fact thatthe language in the regulations and theGuidelines is not couched in buildingcode terminology. The Department is,therefore, withdrawing thisrecommendation. However, theDepartment maintains that the IBC isinconsistent with the Act, theregulations and the Guidelines withrespect to requiring additional groundfloors to be accessible. In addition,during review of the public comments,two additional concerns arose: (1)Whether or not the IBC scopinglanguage, in combination with thedefinition of ‘‘dwelling unit, groundfloor,’’ makes it clear that there must beat least one ground floor, and (2)Whether the language at Exception 2 of1107.5.4 results in requiring builders tomake the lowest floor containingdwelling units of a building accessibleeven if it were more practical to makea different floor (such as the secondfloor) containing dwelling unitsaccessible when that floor is closer tothe grade, even if not ‘‘at grade.’’

The Department will, however, workwith the model code organizations, andany other interested persons, to developalternative language that will addressthis issue to the Department’ssatisfaction. In the meantime, builders,developers, owners, designers,architects and others involved in thedesign and construction of housingcovered by the Act must apply theDepartment’s definition of ‘‘groundfloor’’ when making decisions about theapplicability of the accessibilityrequirements of the Act.

Definition of Building and Structure—(Draft Recommendation Number 5)

In this recommendation, theDepartment recommended that theExceptions to Section 1107.5.4 use theterm ‘‘structure’’ instead of ‘‘building.’’This was recommended both forconsistency with the chargingparagraph, and in order to ensure thatthe intent of the code, that, for purposesof accessibility, IBC treats dwellingunits in buildings separated by firewallsas a single structure. Based on the

comments the Department received onthis recommendation, the Departmenthas withdrawn this recommendation.

Buildings Connected by Breezeways orStairways—(Draft RecommendationNumber 6)

The regulations define a building as‘‘a structure, facility or portion thereofthat contains or serves one or moredwelling units.’’ 24 CFR 100.201. Basedon that definition, a structure with threedwelling units that is structurallyconnected to another structure withthree units, by a stairway or breezeway,for example, is considered one coveredmultifamily dwelling with six dwellingunits.

In most cases, under the IBC, twostructures that are connected by abreezeway or stairway and share thesame roof as the breezeway or stairwayare also considered one building. As aresult, if the total units in bothstructures equals four or more, then thebuilding must comply with the IBC’saccessibility provisions.

It appears, however, that in caseswhere the breezeway or stairway thatstructurally connects both buildingsdoes not provide the only means ofegress and does not share the same roofas the two structures, whether or notthis design is considered one buildingmust be determined under the IBC on acase-by-case basis. In addition, in somecases, the IBC considers walkways,breezeways, and stairways accessorystructures and not integral to thebuilding. If they are determined to beaccessory structures, each building thatthey connect is examined separately. Asa result, the IBC may not meet therequirements of the Guidelines in termsof covered units connected bybreezeways or stairways.

Recommendation Number 3 (DraftRecommendation 6)

It is recommended that the proposedIBC 2000 be modified to include arevision to Section 3104.2, Separatestructures, as follows:

3104.2. Separate structures. Connectedbuildings shall be considered to be separatestructures. For purposes of calculating thenumber of Type B dwelling units and TypeB sleeping accommodations required byChapter 11, structurally connected buildingsand buildings with multiple wings shall beconsidered one structure.

Multistory Dwelling Units—DraftRecommendation Number 7

The regulations determined that amultistory dwelling unit that does nothave an elevator internal to the unit thatis located in a building that does nothave an elevator is not a ‘‘covered

multifamily dwelling’’ because theentire unit is not on the ground floor. 54FR at 3244. The Guidelines define a‘‘multistory dwelling unit’’ as adwelling unit with finished living spacelocated on one floor and the floor orfloors immediately above or below it. 56FR at 9500. A ‘‘single-story dwellingunit’’ is defined as a dwelling unit withall finished living space located on onefloor. 56 FR at 9501.

The IBC defines ‘‘Dwelling Unit,multistory’’ as a dwelling unit withhabitable or bathroom space located onmore than one story. IBC 1102.1. TheIBC defines ‘‘habitable space’’ as a spacein a structure for living, sleeping, eatingor cooking. Bathrooms, toilet rooms,closets, halls, storage or utility spacesand similar areas are not consideredhabitable spaces. The IBC does notdefine the term ‘‘single-story dwellingunit.’’ IBC 202.8.

According to the IBC’s definition of‘‘dwelling unit, multistory’’, a unitwould be considered multistory if onelevel contains living or ‘‘habitable’’space and the floor next above or belowcontains only a bathroom. According tothe definitions in the Guidelines, a two-level unit with only a bathroom, or onlya bathroom and storage space on onelevel, is not a multistory dwelling unitbecause finished living space must belocated on both floors. Bathroom spacealone does not constitute living space,nor does bathroom and storage space. 56FR at 9500–01. The IBC’s definition of‘‘dwelling unit, multistory’’ does notmeet the Department’s interpretation ofwhat constitutes a ‘‘multistory dwellingunit’’ under the Act, the regulations andthe Guidelines.


It is recommended that the referenceto ‘‘or bathroom space’’ in the IBC’sdefinition of ‘‘multistory dwelling unit’’be deleted as follows:

Section 1102, Definitions—Dwelling unit,multistory: For purposes of accessibility, thisterm shall mean a dwelling unit withhabitable space located on more than onestory.

V. Seven Specific Design andConstruction Requirements

The Guidelines specify sevenrequirements relating to accessibilitywhich reflect the language of the Actand the regulations. Compliance withthe provisions of the Guidelinesconstitutes a safe harbor for compliancewith the requirements of the Act. TheAct itself references the ANSI A117.1standard as a means for meeting thetechnical requirements of the Act. Atthe time the Act was passed and the



Guidelines were written, ANSI A117.1–1986 was in effect. Since that time, therehave been two additional editions ofANSI A117.1 published, the CABO/ANSI A117.1 in 1992 and the ICC/ANSIA117.1 in 1998.

The proposed IBC 2000 utilizes thetechnical criteria contained in ICC/ANSIA117.1–1998. As stated in theDepartment’s policy statement and theIntroduction to this final report, theDepartment reviewed the technicalstandards in the CABO/ANSI A117.1–1992 and the ICC/ANSI A117.1–1998 forconsistency with the requirements ofthe Act, the regulations, the Guidelines,and the 1986 edition of ANSI A117.1.The Department recognizes that the1992 and 1993 editions of ANSI havebeen adopted by several of the modelcode organizations, and under manybuilding codes. The purpose of theDepartment’s review was to identify anyinstances where the technical criteria inthe later editions of ANSI A117.1 didnot provide the same level ofaccessibility described in theGuidelines, or as mandated under theAct, so that the Department couldconclude whether the model codes thatadopted the ANSI A117.1 technicalcriteria were consistent with the Act. Inthis review, the Department wasmindful that the Act states thatcompliance with the ANSI A117.1standards constitutes compliance withthe Act. The Department found no suchinstances where a difference betweenANSI A117.1–1992 or 1998 standardwas inconsistent with the Guidelines orthe Act.

Requirement 1: Accessible BuildingEntrance on an Accessible Route

The Guidelines set forthspecifications to implement therequirements of 24 CFR 100.205(a) thatall covered multifamily dwellings shallbe designed and constructed to have atleast one building entrance on anaccessible route, unless it is impracticalto do so because of terrain or unusualcharacteristics of the site. 56 FR at 9503.

Requirement 1 of the Guidelinesincludes specifications for providing anaccessible entrance on an accessibleroute, and explains that therequirements apply to a single buildingon a site and to multiple buildings ona site. In addition, Requirement 1includes specifications for determiningsite impracticality based on terrain andunusual site characteristics; however,the Guidelines specify that coveredmultifamily dwellings with elevatorsshall be designed and constructed toprovide at least one accessible entranceon an accessible route, regardless of

terrain or unusual characteristics of thesite. 56 FR at 9504.

The IBC’s provisions relating to therequirement of an accessible buildingentrance on an accessible route areconsistent with the Act, the regulations,and the Guidelines except as follows:

Site Impracticality Due to TerrainThe Guidelines set forth two tests to

assess site impracticality due toterrain—the individual building test andthe site analysis test. 56 FR at 9503.

Individual Building Test—This testmay be used for all sites, but must beused for sites with a single buildinghaving a common entrance for all units.56 FR 9503.

Site Analysis Test—May be used forall sites, including those with multiplebuildings and single buildings withmultiple entrances serving individualdwelling units or clusters of dwellingunits except sites with a single buildinghaving a common entrance for all units.This test has three steps. 56 FR at 9503–04.

Step A requires the calculation of thepercentage of total buildable area of theundisturbed site with a natural slope ofless than 10%. A professional licensedengineer, landscape architect, architector surveyor must certify the analysis ofthe slope. 56 FR at 9504.

Step B states that the percentage ofground floor units that must be madeaccessible should be equal to the totalbuildable area of the undisturbed site(not including floodplains, wetlands, orother restricted areas) that has anexisting natural grade of less than 10%slope ( previously determined in StepA). 56 FR at 9504.

Step C requires that in addition, allground floor units in a building, orground floor units served by a particularentrance, shall be made accessible if theentrance to the units is on an accessibleroute, defined as a walkway with aslope between the planned entrance anda pedestrian or vehicular arrival pointthat is no greater than 8.33%. In somecases, application of Step C will resultin a greater number of accessible unitsbeing required. 56 FR at 9504.

For example, according to theGuidelines’ site analysis test fordetermining impracticality due toterrain, if 60% of the total area of anundisturbed site has an existing naturalgrade of less than 10% slope, then 60%of the ground floor units are required tobe served by an accessible entrance onan accessible route. If we construct twobuildings not served by elevators on thatsite, each with 20 ground floor units fora total of 40 ground floor dwelling unitson the entire site, then 24 ground floordwelling units (60% of ground floor

units) must have an accessible entranceon an accessible route. In addition,according to Step C of the site analysistest, all ground floor units in thebuilding, or ground floor units served bya particular entrance, shall be madeaccessible if the entrance to the units ison an accessible route.

Variance Related to Site Analysis Test—(Draft Recommendation Number 8)

Section 1107.5.4, Exception 4, of theproposed IBC 2000 provides that thenumber of Type B dwelling units inmultiple non-elevator buildings on asingle site is allowed to be reduced toa percentage of the ground floor unitswhich is equal to the percentage of theentire site having grades, prior todevelopment, which are 10% or less;but in no case shall the number of TypeB units be less than 20% of the groundfloor dwelling units on the entire site.

This Exception corresponds to StepsA and B of the site analysis test, exceptthat the Guidelines require the grades tobe ‘‘less than 10%’’. In addition, theException fails to provide equivalentlanguage to Step C, i.e., it does notrequire that, in addition to thepercentage of ground floor unitsrequired to be accessible, all groundfloor units in buildings, or ground floorunits served by a particular entrance,must be made accessible if the entranceto the units is on an accessible route. 56FR at 9504. Therefore, the IBC does notmeet this aspect of the Guidelines.

Moreover, according to theGuidelines, regardless of siteconsiderations, an accessible entranceserved by an accessible route is practicalwhenever an elevator connects parkingwith a ground floor, in which case allground floor units are covered, orwhenever an elevated walk with a slopeno greater than 10% is planned betweenan entrance and a pedestrian orvehicular arrival point. 56 FR at 9504.The IBC does not include any languagethat reflects these requirements. As aresult, the IBC does not meet theseprovisions of the Guidelines.


In order to address theseinconsistencies, we recommend thefollowing modification to 1107.5.4,Exception 4:

The number of Type B dwelling unitsand Type B sleeping accommodationsprovided in multiple non-elevatorbuildings on a single site is allowed tobe reduced to a percentage of the groundfloor units and sleepingaccommodations intended to beoccupied as a residence which is equalto the percentage of the entire site



having grades, prior to development,which are less than 10%; but in no caseshall the number of Type B dwellingunits and Type B sleepingaccommodations be less than 20 percentof the ground floor dwelling units andground floor sleeping accommodationsintended to be occupied as a residenceon the entire site. In addition to thepercentage established, all ground floorunits and ground floor sleepingaccommodations intended to beoccupied as a residence in a building, orground floor units and ground floorsleeping accommodations intended tobe occupied as a residence served by aparticular entrance shall be Type B ifany one of the following applies:

4.1 The slope between the entrance tothe units and the sleepingaccommodations intended to beoccupied as a residence and apedestrian or vehicular arrival point isno greater than 8.33%; or 4.2 Anelevator provides access to the groundfloor only; or 4.3 An elevated walkwaywith a slope not exceeding 10 percentis planned between an entrance and apedestrian or vehicular arrival point.The slope of the walkway, in such casesshall be reduced to no greater than8.33%.

Variance Related to Buildings withElevators—(Draft RecommendationNumber 9)

According to the Guidelines,buildings with elevators must providean accessible entrance on an accessibleroute regardless of site impracticality.56 FR at 9503. The IBC 2000 does notreflect this requirement in Section1107.5.4, Exception 5.


It is recommended that Exception 5,Section 1107.5.4 be modified to exemptbuildings with elevators from siteimpracticality as follows:

The required number of Type A andType B dwelling units and Type Bsleeping accommodations shall notapply to a site where the lowest floor orthe lowest structural building membersof non-elevator buildings are required tobe at or above the base floor elevationresulting in * * *

Variance Related to Sites with UnusualCharacteristics—(DraftRecommendation Number 10)

The criteria in the Guidelines fordetermining site impracticality for siteshaving unusual characteristics specifiesthat an accessible entrance on anaccessible route is impractical when theunusual site characteristics result in adifference in finished grade elevation

exceeding 30 inches AND 10 percent,measured between an entrance and ALLvehicular or pedestrian arrival pointswithin 50 feet of the planned entrance,and if none, then between the closestvehicular or pedestrian arrival point. 56FR at 9504.

The IBC’s corresponding provision atSection 1107.5.4, Exception 5, statesthat the accessibility requirements shallnot apply to a site where the lowestfloor or the lowest structural buildingmembers is required to be at or abovethe base flood elevation resulting in adifference in elevation between theminimum required floor elevation at theprimary entrances and vehicular andpedestrian arrival points within 50 feetexceeding 30 inches, OR a slopeexceeding 10 percent between theminimum required floor elevation at theprimary entrances and vehicular andpedestrian arrival points within 50 feet.The Guidelines specify that thedifference in finished grade elevationmust be both 30 inches and 10 percent.


It is recommended that Section1107.5.4, Exception 5, paragraph 5.1, berevised as follows:

5.1. A difference in elevation betweenthe minimum required floor elevation atthe primary entrances and vehicular andpedestrian arrival points within 50 feet(15 240 mm) exceeding 30 inches (762mm), AND * * *

Requirement 2: Accessible and UsablePublic and Common Use Areas

The Act and the regulations providethat covered multifamily dwellings witha building entrance on an accessibleroute be designed and constructed in amanner so that the public and commonuse areas are readily accessible to, andusable by, people with disabilities. 42U.S.C. 3604 (f)(3)(C)(i); 24 CFR 100.205(c )(1). The Guidelines’ Requirement 2cites the appropriate section of the ANSIA117.1–1986 Standard for the technicalprovisions for 15 accessible elements orspaces, and describes the application ofthe specifications includingmodifications to the referencedStandard. 56 FR at 9505. Following arethe 15 basic elements or spaces foraccessible and usable public andcommon use areas or facilities:

Accessible routes, Protruding objects,Ground and floor surface treatments, Parkingand passenger loading zones, Curb ramps,Ramps, Stairs, Elevators, Platform lifts,Drinking fountains and water coolers, Toiletrooms and bathing facilities, Seating, tables,or work surfaces, Places of assembly,Common-use spaces and facilities, Laundryrooms.

56 FR at 9505. When a variance isidentified in the IBC that does not meetthe requirements of the Guidelines foreach of the 15 elements or spaces above,it is noted below.

Accessible Route(s)

Requirement 1, paragraph (5) of theGuidelines states that if the slope of thefinished grade between coveredmultifamily dwellings and a public orcommon use facility exceeds 8.33%, orwhere other physical barriers or legalrestrictions, all of which are outside thecontrol of the owner, prevent theinstallation of an accessible pedestrianroute, an acceptable alternative is toprovide access via a vehicular route, solong as necessary site provisions such asparking spaces and curb ramps areprovided at the public or common usefacility. 56 FR at 9504.

Vehicular Route—(DraftRecommendation Number 11)

IBC 2000 Section 1107.5.5 containslanguage that is comparable to theGuidelines with one exception. Thatsection states:

If the slope of the finished groundlevel between accessible facilities andbuildings exceeds one unit vertical in 12units horizontal, or where physicalbarriers prevent the installation of anaccessible route, a vehicular route withparking at each accessible facility orbuilding is permitted in place of theaccessible route.

The IBC does not include languagemaking it clear that accessible parkingmust be available at each public orcommon use facility if access isprovided by a vehicular route.


It is recommended that the proposedIBC 2000 1107.5.5, Accessible route, bemodified to include the followinglanguage:

If the slope of the finished groundlevel between accessible facilities andbuildings exceeds one unit vertical in 12units horizontal, or where physicalbarriers prevent the installation of anaccessible route, a vehicular route withaccessible parking in accordance with1106, at each public or common usefacility or building is permitted in placeof the accessible route.

Headroom—(Draft RecommendationNumber 12)

Based on the public commentsreceived, the Department hasdetermined that the IBC adequatelyaddresses this issue.



Stairs—(Draft RecommendationNumber 13)

The Guidelines require thataccessibility be provided on stairslocated along accessible routesconnecting levels not connected by anelevator. 56 FR at 9505. For example, aground floor entry might have steps upto a bank of mailboxes, with a ramplocated beside the steps. The stairs inthis case are required to meet the ANSIA117.1 specification, since they will beused by people with disabilities forwhom stairs are more usable thanramps. However, stairs are not acomponent of an accessible route.

Since stairs are not parts of accessibleroutes and they are not specificallyreferenced in Chapter 11, Accessibility,of the proposed IBC 2000, one mustrefer to Chapter 10, Means of Egress, forstair provisions. However, the Chapter10 requirements do not necessarilyapply to stairs that connect levels notconnected by an elevator if they are nota part of a means of egress. There arevariances between the proposed IBC2000 and the Guidelines’ requirementsfor stairs located along accessible routesnot connected by an elevator.


It is recommended that the IBCinclude a provision for stairways underSection 1108, Other Features andFacilities as follows:

StairwaysStairways located along accessible

routes connecting floor levels that arenot connected by an elevator shall bedesigned and constructed to complywith ICC/ANSI A117.1–1998.

Parking and Passenger Loading Zones—(Draft Recommendation Number 14)

The Questions and Answers Aboutthe Guidelines (Question and Answer14c) states that where there are severalindividual parking garages groupedtogether either in a separate area of thebuilding (such as at one end of thebuilding, or in a detached building), forassignment or rental to residents, atleast 2% of the garages must be at least14′2″ wide and have a vehicular door atleast 10′ wide. 59 FR at 33366. Thisrequirement assumes that garageparking is the only type of parkingprovided at the site.

Question and Answer 14c providesthe minimum requirement for the widthof accessible garages and garage doors.The minimum widths provide enoughspace for an automobile to enter thegarage, and for a passenger or driverusing a wheelchair to exit through thegarage door without interference by the

automobile. However, the minimumrequirements do not preclude a garagedesign that provides equivalent orgreater accessibility. For example, adesigner may choose to design a garagewith a door that is 8 feet wide, butprovides a separate accessible exit doorthrough which the driver or thepassenger may exit, provided that itconnects to the accessible route to theentrance of the unit.

The IBC does not provide minimumrequirements for these garages, andtherefore, does not meet this provisionof the Guidelines.

The Guidelines provide that ifprovided at the site, there be * * *accessible visitor parking sufficient toprovide access to grade-level entrancesof covered multifamily dwellings, andaccessible parking at facilities. TheGuidelines also require accessibleparking on the same terms and with thefull range of choices (e.g., surfaceparking or garage) that are provided toother residents of the project. 56 FR at9505.

In addition, the Questions andAnswers About the Guidelines providefurther clarification of the parkingrequirements at Q&A 14(b) whichclarifies that when more than one typeof parking is provided, at least onespace for each type of parking should bemade accessible even if this numberexceeds two percent.

The Department is not recommendingthat the IBC revise any of its broaderscoping requirements for parking.However, the IBC does not includecomparable language in Section 1106,Parking and Passenger LoadingFacilities, with respect to the abovevariances. Therefore, the IBC does notmeet the provisions of the Guidelineswith respect to these issues.


In order to address theseinconsistencies, it is recommended thatthe proposed IBC 2000 add thefollowing language to Section 1106.2,Group R–2 and R–3.

Where there are several individualgarages grouped together, either in aseparate area of a structure or in adetached structure, for assignment orrental to residents, at least 2% ofparking garages provided for Type Bdwelling units and Type B sleepingaccommodations must be at least 14′2″wide and have a vehicular door at least10′ wide * * *

* * * Where accessible parkingspaces are provided, at least one of eachtype (surface parking, carports, orgarage) shall be provided.

* * * Where visitor parking isprovided, at least one accessible visitorparking space shall be provided.

* * * Where parking is provided atpublic and common use facilities thatserve accessible buildings, at least oneaccessible parking space shall beprovided.

Recreational FacilitiesThe Guidelines, in Requirement 2,

state that: ‘‘If provided in the facility orat the site; (a) where multiplerecreational facilities (e.g., tennis courts)are provided sufficient accessiblefacilities of each type to assure equitableopportunity for use by persons withhandicaps’’ shall be provided. Thesefacilities must be connected by anaccessible route to the covered dwellingunits or a vehicular route if anaccessible route is not possible. The IBCSection 1108.14.1 requires 25%, but notless than one, of recreational facilities ofeach type in each occupancy group to beaccessible.

The Department concludes that theGuidelines may be interpreted to bestricter than the requirements of themodel codes with respect to therequirement for accessible recreationalfacilities because an interpretation of‘‘sufficient to provide equitableopportunity for use’’ may result indeterminations that recreationalfacilities that serve different buildingscontaining accessible dwelling unitsmust be accessible, even if this meansmaking all of the same type ofrecreational facility accessible (such astwo swimming pools on a large site,each serving different buildings on thesite).

For example, one out of fourrecreational facilities of the same typeserving a specific residential use groupis code compliant (25% but not lessthan one), but may not be considered‘‘sufficient’’ by the Department if thefacilities of the same type are widelyspread across a large site serving onebuilding, or spread across a site onwhich there are multiple buildings.

However, because this matter was notincluded in the draft reports, and therehas not been an opportunity for publicparticipation in a resolution of thismatter, the Department is not includinga recommendation to resolve thismatter. The Department will work withall interested parties to address thismatter.

Requirement 3: Usable DoorsThe Act and the regulations require

that all doors designed to allow passageinto and within a covered dwelling unitbe sufficiently wide to allow passage bypersons in wheelchairs. 42 U.S.C. § 3604



(f)(3)(C)(ii); 24 CFR 100.205(c)(2). TheGuidelines set forth criteria to meet thisrequirement. 56 FR at 9506. TheGuidelines also set forth additionalguidance regarding doors that are a partof an accessible route in the public andcommon use areas of multifamilydwellings and to doors into and withinindividual dwelling units. 56 FR at9506.

The Guidelines provide the following:On accessible routes in public and

common use areas, and for primaryentry doors to covered units, doors thatcomply with ANSI A117.1 4.13 willmeet the Act’s requirements for usabledoors; and

Within individual dwelling units,doors intended for user passage throughthe unit which have a clear opening ofat least 32 inches nominal width whenthe door is open 90 degrees, measuredbetween the face of the door and thestop, would meet the Act’s requirement.56 FR at 9506. The Department hasdetermined that the IBC meets therequirements of the Act, the regulations,and the Guidelines for usable doors.

Requirement 4: Accessible Route Intoand Through the Covered Dwelling Unit

The Act and the regulations requirethat all covered multifamily dwellingswith a building entrance on anaccessible route shall be designed andconstructed in such a manner that allpremises within covered multifamilydwelling units contain an accessibleroute into and through the covereddwelling unit. 42 U.S.C. § 3604(f)(3)(C)(iii)(I); 24 CFR 100.205 (c)(3)(i).Requirement 4 of the Guidelines setsforth criteria to meet this requirement.56 FR at 9509–10. The proposed IBC2000 meets the provisions of the Act,the regulations, and Guidelines withrespect to Requirement 4, except thefollowing:

Multistory Units Served by Elevators—(Draft Recommendation Number 15)

Among the criteria for Requirement 4is the requirement that in multistorydwelling units in buildings withelevators, the story of the unit that isserved by the building elevator is theprimary entry to the unit. 56 FR at 9507.

The IBC does not mention that wherea multistory dwelling unit is providedwith elevator service, the story servedby the elevator must be the primaryentry to the unit. As a result, the IBCdoes not meet the requirements of theGuidelines in terms of the exceptionsfor multistory units in buildings servedby elevators.


It is recommended that the IBCmodify Section 1107.5.4, Exception 3 asfollows:

A multistory dwelling unit which isnot provided with elevator service is notrequired to comply with therequirements for Type B dwelling units.Where a multistory dwelling unit isprovided with elevator service to onlyone floor, the floor provided withelevator service shall be the primaryentry to the unit, shall comply with therequirements for a Type B dwellingunit, and a toilet facility shall beprovided.

Requirement 5: Light Switches,Electrical Outlets, Thermostats, andOther Environmental Controls inAccessible Locations

The Act and the regulations requirethat all covered multifamily dwellingswith a building entrance on anaccessible route shall be designed andconstructed so that all premises withinthe covered units contain light switches,electrical outlets, thermostats, and otherenvironmental controls in accessiblelocations. 42 U.S.C. § 3604(f)(3)(C)(iii)(II); 24 CFR 100.205(c)(3)(ii).Requirement 5 of the Guidelines setsforth criteria to meet theserequirements. 56 FR at 9507. The IBCmeets the provisions of the Act, theregulations, and Guidelines with respectto Requirement 5.

Requirement 6: Reinforced Walls forGrab Bars

Requirement 6 of the Guidelines setsforth technical specifications to meetthe requirements of the Act at 42 U.S.C.§ 3604 (f)(3)(C)(iii)(III) and theregulations at 24 CFR 100.205(c)(3)(iii),which specify that all coveredmultifamily dwellings with a buildingentrance on an accessible route shall bedesigned and constructed so that allpremises within the covered unitscontain reinforcements in bathroomwalls to allow later installation of grabbars around toilet, tub, shower stall andshower seat, where such facilities areprovided. 56 FR at 9509–10. Theproposed IBC 2000 provisions meet therequirements of the Act, the regulations,and the Guidelines.

Requirement 7: Usable Kitchens andBathrooms

The Act and the regulations providethat all covered multifamily dwellingswith a building entrance on anaccessible route shall be designed tohave usable kitchens and bathroomssuch that an individual in a wheelchaircan maneuver about the space. 42 U.S.C.

§ 3604 (f)(3)(C)(iii)(IV); 24 CFR100.205(c)(3)(iv). Requirement 7 of theGuidelines sets forth technical criteriato meet those requirements. 56 FR at9511–15. The proposed IBC 2000provisions meet the requirements of theAct, the regulations, and Guidelines.

Chapter 4: Uniform Building CodeAnalysis

I. Purpose

The purpose of this report is toidentify provisions of the 1997 editionof the Uniform Building Code (UBC),published by the InternationalConference of Building Officials (ICBO)that do not meet the requirements of theFair Housing Act (the Act), theregulations implementing the 1988Amendments to the Act (theregulations), or the Fair HousingAccessibility Guidelines (theGuidelines). Where variances areidentified, the Department recommendshow they may be revised to meet therequirements of the Act, the regulations,or the Guidelines.

II. Methodology

The analysis of the UBC by theDepartment and Steven WinterAssociates, Inc. SWA, its contractor,consisted of the following:—A review of the language of the Act,

42 U.S.C. 3604 (f)(3)(C), theregulations at 24 CFR 100.201 and205, the Guidelines, 56 FR at 9472–9515, and the June 28, 1994‘‘Supplement to Notice of FairHousing Accessibility Guidelines:Questions and Answers About theGuidelines,’’ 59 FR 12 33362–33368(the Questions and Answers Aboutthe Guidelines).

—A review of the December 15, 1997copyrighted comparative matrixdeveloped by the International CodeCouncil (ICC), Buildings Officials &Code Administrators International(BOCA), International Conference ofBuilding Officials (ICBO), SouthernBuilding Code Congress International(SBCCI), and the Council of AmericanBuilding Officials (CABO). Thematrix, which was included withHUD’s Request for Quotations for thisanalysis, consists of a side-by-sidecomparison of the Guidelines with thecorresponding accessibility provisionsof the three model building codes andthe UBC. SWA began its analysis ofthe UBC by reviewing the column ofthe matrix that includes the UBC’saccessibility requirements andcomparing them with the column thatincludes the provisions of theGuidelines. The matrix review wasconducted to identify apparent



variances between the UBC’saccessibility requirements and thoseof the Act, regulations, andGuidelines.

—A review of the accessibilityprovisions of the UBC, 1997 editionand a review of applicable referencedcodes and standards, including:American National StandardsInstitute (ANSI) A117.1–1986, whichis referenced in the regulations, andCABO/ANSI A117.1–1992. Becausethe matrix did not include full text ofthe technical provisions, it wasnecessary to use these standards ascompanion documents in assessingthe matrix, the Guidelines, and theUBC. They were reviewed to identifyany variances from the Act,regulations, or Guidelines in thetechnical provisions required by each.

—Interviews with Paul Armstrong,ICBO Senior Staff Engineer, to gaininsight into how the UBC responds tovariances that SWA identified. SWAfound it necessary to understandICBO’s interpretations of its ownrequirements that may not beapparent when reviewing code text.The Department formed a Model Code

Working Group consisting ofrepresentatives from the Office of FairHousing and Equal Opportunity, theOffice of General Counsel, and theOffice of Housing. A representative ofthe U.S. Department of Justice alsoparticipated on the Working Group. TheWorking Group met with SWA onSeptember 29, 1999, asked questionsand made comments and suggestionsabout the analysis.

The draft report was published forpublic comment on October 26, 1999,and a public meeting on the draftreports was held on November 10, 1999.Written comments on the report werereceived. All comments were reviewedand considered. This final reportincorporates many of those commentsand has been revised from the draftreport.

III. The Uniform Building Code

The ICBO administers the UBC seriesof model regulatory construction codes.

Unlike the Fair Housing Act, the UBCis a model building code and not a law.It provides minimum standards forpublic safety, health, and welfare asthey are affected by buildingconstruction. Compliance with the UBCis not required unless adopted byreference by a jurisdiction’s board,council, or other authoritative governingbody. Jurisdictions may adopt a modelbuilding code in its entirety or withmodifications; hence, the building codesare referred to as ‘‘model codes.’’

The 1997 UBC, published January 1,1997, includes provisions foraccessibility intended to reflect theintent of the Guidelines. Previouseditions of the code include provisionsfor accessibility, but not as required bythe Act. The 1997 UBC, Chapter 11,Accessibility, is the first attempt atcodifying the accessibility provisions ofthe Act. Any jurisdiction that adopts the1997 UBC code must follow theseaccessibility provisions.

In the past, some model buildingcodes, including the UBC, have requiredthat a certain percentage or number ofdwelling units in defined residentialuses meet the standards for fullaccessibility as defined by ANSI A117.1.These dwelling units are referred to inthe UBC in Section 1102 as a ‘‘Type Adwelling unit.’’ It is important to note,however, that CABO/ANSI A117.1–1992, adopted by the UBC, does notcontain scoping provisions, discussedbelow. The UBC also includes scopingand technical provisions for a ‘‘Type Bdwelling unit,’’ which is intended toreflect the requirements of the Act, theregulations, and the Guidelines, inSection 1106.

It is the Department’s understandingthat ICBO will no longer publishsubsequent updates to the latest versionof the UBC. The four model codeorganizations have joined with the ICCto produce one international buildingcode under the ICC, the first of whichwill be published as the InternationalBuilding Code 2000 early in the year2000.


components that are relevant to thisanalysis. One component describes thetechnical standards that should beapplied during the design andconstruction or alteration of a buildingor structure or elements within astructure. The other component is adescription of the types of buildings orstructures or elements within a structureto which the technical standards areapplied. The provisions in this secondcomponent are referred to as ‘‘scoping’’provisions. This section of the analysissets forth areas where the scopingprovisions of the UBC do not include allof the dwelling units, buildings, or usesthat are covered by the Act, regulations,or the Guidelines. This analysis of thescoping provisions of the UBC includedan examination of the following:

UBC’s definition of dwelling unit,building, structure, and ground floordwelling unit;

UBC’s classification of residentialbuildings according to use andoccupancy; and

UBC’s scoping of dwelling units towhich the accessibility provisionsapply.

This analysis concludes that the UBCcovers most of the same dwelling units,buildings and residential uses as theAct, regulations, and Guidelines. Forexample, the Department has concludedthat, with respect to buildings with fouror more dwelling units, apartments,custom-designed condominiums,multistory units with internal elevators,single story townhouses, and modularunits are covered. Additions of four ormore units to existing buildings are alsoincluded within the UBC’s scopingrequirements for Type B dwelling units.However, the Department hasconcluded that the following provisionsof the UBC do not or may not include‘‘covered multifamily dwellings’’ asthey are defined in the Act, regulationsor Guidelines.

UBC Classification of Residential UseGroups

The UBC Section 310.1 definesresidential occupancies (Group Roccupancies) as follows:

Division 1: Hotels and apartmenthouses. Congregate residences (eachaccommodating more than 10 persons).Section 204, Chapter 2, definescongregate residences as follows: anybuilding or portion thereof that containsfacilities for living, sleeping andsanitation, as required by this code, andmay include facilities for eating andcooking, for occupancy by other than afamily. A congregate residence may bea shelter, convent, monastery,dormitory, fraternity or sorority house,but does not include jails, hospitals,nursing homes, hotels or lodginghouses.

Division 2: Not used.Division 3: Dwellings and lodging

houses. Congregate residences (eachaccommodating 10 persons or less).Includes detached one- and two-familydwellings.

The reference to ‘‘detached one- andtwo-family dwellings’’ under Division 3refers to structures that are physicallydetached.

The UBC requires that in Group R,Division 1 occupancy apartmentscontaining four or more dwelling units,and in Group R, Division 3 occupancieswhere there are four or more dwellingunits in a single structure, all dwellingunits shall be Type B dwelling units.Section 1103.1.9. In Section 1102, TypeB dwelling units are defined as unitsthat are designed and constructed foraccessibility in accordance with Section1106. Section 1106 provides the designand construction requirements for TypeB units.



Congregate Residences—(DraftRecommendation Numbers 1 and 2)


A single unit of residence for a familyof one or more persons. Examples ofdwelling units include: a single familyhome; an apartment unit within anapartment building; and in other typesof dwellings in which sleepingaccommodations are provided buttoileting or cooking facilities are sharedby occupants of more than one room orportion of the dwelling, rooms in whichpeople sleep. Examples of the latterinclude dormitory rooms and sleepingaccommodations in shelters intendedfor occupancy as a residence forhomeless persons. 24 CFR 100.201.

It is clear from the discussion in thepreamble to the regulations, found at 54FR at 3244 (Jan. 23, 1989), that theDepartment intended that each sleepingroom intended for occupancy by aseparate household in a building withshared toileting or kitchen facilitieswould be considered a separatedwelling unit, and that buildings withfour or more of these sleepingaccommodations are ‘‘coveredmultifamily dwelling units’’ forpurposes of the Act.

Of course, a detached building thathas four or more sleeping rooms withshared toileting or kitchen facilities andthat is intended for occupancy by onehousehold is not considered to be a‘‘covered multifamily dwelling’’ underthe Act. For example, a detached singlefamily house with four bedroomsoccupied by four or more personsrelated by birth or marriage is not acovered multifamily dwelling. Inaddition, a single family house occupiedby four or more unrelated persons thatfunctions as one distinct household,such as what is commonly referred to asa ‘‘group home,’’ would not beconsidered to be a ‘‘covered multifamilydwelling’’ for purposes of theapplication of the design andconstruction requirements of the Act.This latter example is consistent withcase precedent and the position of thisDepartment and the Department ofJustice with respect to the application ofzoning and land use restrictions tosingle family group homes.

The UBC defines the term ‘‘dwellingunit’’ in Section 205, Chapter 2,Definitions and Abbreviations, asfollows:

Dwelling Unit is any building orportion thereof that contains livingfacilities, including provisions forsleeping, eating, cooking, andsanitation, as required by this code, fornot more than one family, or a

congregate residence for 10 or lesspersons.

According to Section 1103.1.9.3,Multi-unit dwellings, the UBC’saccessibility provisions apply to GroupR, Division 1 and 3 occupancies. Inorder to determine whether or notdwelling units covered by theregulations are covered in the same wayby the UBC, one must examine theUBC’s classification of each type of unit.

According to Section 310.1 of theUBC, Group R, Division 1 occupanciesinclude hotels, apartment houses,including residential condominiums,and congregate residencesaccommodating more than 10 persons.Group R, Division 3 occupanciesinclude dwellings, lodging houses(containing not more than five guestrooms where rent is paid in money,goods, labor, or otherwise), andcongregate residences accommodating10 persons or less.

The accessibility requirements forcongregate residences are covered underUBC Section 1103.1.9.2, hotels, lodginghouses, and congregate residences asfollows:

In hotels, lodging houses andcongregate residence occupanciescontaining six or more guest rooms,multi-bed rooms or spaces for more thansix occupants, one for the first 30 guestrooms or spaces and one additional foreach additional 100 guest rooms orspace, or fraction thereof, shall beaccessible. In hotels with more than 50sleeping rooms or suites, roll-in-typeshowers shall be provided in one half,but not less than one, of the requiredaccessible sleeping rooms or suites.

Congregate residences thataccommodate less than six guest roomsfor less than six occupants are requiredto provide accessibility according to1103.1.9.3, Multi-unit dwellings.However, if a congregate residenceaccommodates between six and nineoccupants, it can be covered by eitherSections 1103.1.9.3, Multi-unitdwellings or Section 1103.1.9.2, Hotels,lodging houses and congregateresidences. According to ICBO staffinterviews, in these cases the UBCrequires that the stricter provisionapply.

To the extent that the UBC does notrequire in congregate residences that allground floor sleeping rooms occupiedby a separate household in buildingswithout an elevator, or all sleepingrooms occupied by a separate householdin elevator buildings, meet therequirements of a Type B dwelling unit,it does not meet the requirements of theregulations.

Continuing Care Facilities—(DraftRecommendation Number 3)

Continuing care facilities are coveredby the Act. 59 FR at 33364. The UBCSection 308.1 classifies these types offacilities as Group I, Division 1.1 and 2occupancies. These occupancies aredefined as follows:

Group I, Division 1.1: Nurseries forthe full-time care of children under theage of six (each accommodating morethan five children). Hospitals,sanitariums, nursing homes withnonambulatory patients and similarbuildings (each accommodating morethan five patients).

Group I, Division 2: Nursing homesfor ambulatory patients, homes forchildren six years of age or over (eachaccommodating more than five patientsor children).

The UBC’s accessibility provisions forGroup R occupancies of four or moredwelling units do not apply to UBC’sGroup I occupancies. However, they arerequired to provide accessibility asfollows:

Section 1103.1.7 Group IOccupancies. Group I occupancies shallbe accessible in public-use, common-use and employee-use areas, and shallhave accessible patient rooms, cells, andtreatment or examination rooms asfollows:

In Group I, Division 1.1 and 2 nursinghomes and long-term care facilities, atleast one in every two patient rooms, orfraction thereof, including associatedtoilet rooms and bathing rooms.

Under the definition of ‘‘dwellingunit’’ contained in the regulations, asleeping room in a nursing home or ahome for juveniles occupied by anindividual as a residence in a buildingwith four or more such dwelling unitswould be covered under theaccessibility requirements of the Act. Tothe extent therefore that sleeping roomsin Group I, Division 1.2 occupancies arenot covered under the requirements forType B dwelling units under the UBC,the UBC does not meet the requirementsof the Act.

Recommendation Number 1 (DraftRecommendation Numbers 1, 2 and 3)

To ensure that the UBC covers thesame dwelling units and sleeping roomsrequired to provide accessibilityaccording to the Act, it is recommendedthat the UBC be revised to modifySections 1103.1.7, 1103.1.9.2, and1103.1.9.3. 1103.1.7 Group IOccupancies. Group I Occupancies shallbe accessible in public-use, common-use and employee-use areas, and shallhave accessible patient rooms, cells, andtreatment or examination rooms asfollows:



3. In Group I, Divisions 1.1 and 2nursing homes and long-term carefacilities, at least one in every twopatient rooms, or fraction thereof,including associated toilet rooms andbathrooms. In addition, in structureswith four or more patient roomsintended to be occupied as a residence,all patient rooms intended to beoccupied as a residence shall complywith the requirements for Type Bdwelling units required by 1103.1.9.3with the same exceptions as providedfor in Section 1103.1.9.3.

Section 1103.9.2 Hotels, lodginghouses and congregate residences.

In addition to the accessible guestrooms required above, and in additionto the accessible guest rooms for personswith hearing impairments requiredabove, in congregate residences instructures with four or more guestrooms intended to be occupied as aresidence, all guest rooms intended tobe occupied as a residence shall complywith the requirements for Type Bdwelling units required by 1103.1.9.3with the same exceptions as providedfor in Section 1103.1.9.3. Section1103.1.9.3 Multi-unit dwellings.

In Group R, Division 1 Occupancyapartments, and guest rooms intendedto be occupied as a residence containingfour or more dwelling units or guestrooms intended to be occupied as aresidence, and Group R, Division 3Occupancies where there are four ormore dwelling units in a singlestructure, or where there are four ormore guest rooms intended to beoccupied as a residence, all dwellingunits and guest rooms intended to beoccupied as a residence shall be Type B.In Group R, Division 1 apartmentoccupancies containing more than 20dwelling units, at least 2 percent, butnot less than one, of the dwelling unitsshall be Type A dwelling units. Alldwelling units on a site shall beconsidered to determine the totalnumber of accessible dwelling units. Allguest rooms intended to be occupied asa residence shall be considered todetermine the total number of accessibleguest rooms intended to be occupied asa residence on the entire site.

Exceptions:1. Where no elevator service is

provided in a building, Type B dwellingunits and Type B guest rooms intendedto be occupied as a residence need notbe provided on floors other than theground floor.

2. Where no elevator service isprovided in a building and the groundfloor does not contain dwelling units orguest rooms intended to be occupied asa residence, only those dwelling unitsand guest rooms intended to be

occupied as a residence located on thefirst floor containing dwelling units orguest rooms intended to be occupied asa residence above the floor at grade ofeither Group R, Division 1 apartmentoccupancies or guest rooms intended tobe occupied as a residence, or Group R,Division 3 Occupancies need complywith the requirements of this section.

3. A multistory dwelling unit notprovided with elevator service is notrequired to comply with requirementsfor Type B dwelling units. Where amultistory dwelling unit is providedwith elevator service to only one floor,the floor provided with elevator serviceshall be the primary entry to the unit,shall comply with the requirements fora Type B dwelling unit, and a toiletfacility shall be provided on that floor.

4. The number of Type B dwellingunits and Type B guest rooms providedin multiple non-elevator buildings on asingle site may be reduced to apercentage of the ground floor dwellingunits and ground floor guest roomsintended to be occupied as a residence,that is equal to the percentage of theentire site having grades, prior todevelopment, that are less than 10%;but in no case shall the number of TypeB dwelling units or Type B guest roomsbe less than 20% of the ground floordwelling units or ground floor guestrooms intended to be occupied as aresidence, on the entire site. In additionto the percentage established, all groundfloor units and ground floor guest roomsintended to be occupied as a residencein a structure, or ground floor dwellingunits or ground floor guest roomsintended to be occupied as a residenceserved by a particular entrance shall beType B if any one of the followingapplies:

4.1 The slope between the entranceto the units or guest rooms intended tobe occupied as a residence, and apedestrian or vehicular arrival point isno greater than 8.33%; or

4.2 An elevator provides access tothe ground floor only; or

4.3 An elevated walkway with aslope not exceeding 10 percent isplanned between an entrance and apedestrian or vehicular arrival point.The slope of the walkway, in such casesshall be reduced to no greater than8.3%.

5. The required number of Type Aand Type B dwelling units and Type Bguest rooms shall not apply to a sitewhere the lowest floor or the loweststructural building members of non-elevator buildings is required to be at orabove the base floor elevation resultingin:

5.1 NO CHANGE5.2 NO CHANGE

6. Single family detached houses withfour or more sleeping rooms occupiedby a single household of related orunrelated persons.

Note: See Recommendations later inthis report regarding explanations formodifications made to some of theexceptions to 1103.1.9.3 above.

Ground Floor Dwelling Unit—(DraftRecommendation Number 4)

The regulations define ‘‘ground floor’’as a ‘‘floor of a building with a buildingentrance on an accessible route. Abuilding may have one or more groundfloors.’’ 24 CFR 100.202. The Guidelinesfurther state: ‘‘Where the first floorcontaining dwelling units in a buildingis above grade, all units on that floormust be served by a building entranceon an accessible route. This floor will beconsidered to be a ground floor.’’ 56 FRat 9500.

If a building is built into a hill, forexample, and the front and the back ofthe building have entrances to dwellingunits at grade, but at differentelevations, the ground floor dwellingunits on both levels are covered underthe Guidelines. 59 FR at 3364.

Since, according to the exampleabove, both levels of the building haveentrances to dwelling units at grade, theUBC requires accessibility to theseunits.

In Section 1102, the UBC definesGround Floor Dwelling Unit as ‘‘adwelling unit with a primary entranceand habitable space at grade.’’ However,it is unclear from the UBC’s definitionof ‘‘ground floor dwelling unit’’ thatthere can be more than one groundfloor, or ground floor units on differentlevels of a building. Exception 1,Section 1103.1.9.3, Multi-unitdwellings, states that where no elevatorservice is provided in a building, TypeB dwelling units need not be providedon floors other than the ground floor.

In its draft report for public comment,the Department offered arecommendation that the UBC defineground floor to match the regulationsand the Guidelines, and delete thedefinition of ‘‘ground floor dwellingunit’’ from Section 1102 (DraftRecommendation Number 4). Inaddition, the Department recommendedthat Exception 1 to Section 1103.1.9.3be modified to recognize that there maybe more than one ground floor. As theDepartment stated in the introduction tothis report, it is mindful of the fact thatthe language in the regulations and theGuidelines is not couched in buildingcode terminology. The Department is,therefore, withdrawing thisrecommendation. However, theDepartment maintains that the UBC is



inconsistent with the Act, theregulations and the Guidelines withrespect to requiring additional groundfloors to be accessible. In addition,during review of the public comments,two additional concerns arose: (1)Whether or not the UBC scopinglanguage, in combination with thedefinition of ‘‘ground floor dwellingunit,’’ makes it clear that there must beat least one ground floor, and (2)Whether the language at Exception 2 of1103.1.9.3 results in requiring buildersto make the lowest floor containingdwelling units of a building accessibleeven if it were more practical to makea different floor (such as the secondfloor) containing dwelling unitsaccessible when that floor is closer tothe grade, even if not ‘‘at grade.’’ TheDepartment will, however, work withthe model code organizations, and anyother interested persons, to developalternative language that will addressthis issue to the Department’ssatisfaction.

In the meantime, the Departmentbelieves that owners, builders,developers, designers, architects andothers involved in the design andconstruction of housing covered by theAct must apply the Department’sdefinition of ‘‘ground floor’’ whenmaking decisions about the applicabilityof the accessibility requirements of theAct.

First Level of Living—(DraftRecommendation Number 5)

The Department considers the firstlevel of dwelling units above retail,parking, commercial space, etc. inbuildings without elevators as theground floor and all units on that floormust be designed with an accessibleentrance on an accessible route. 56 FRat 9500. The UBC intends on coveringthese same units by stating thefollowing in Exception 2, Section1103.1.9.3, Multi-unit dwellings:

Where no elevator service is providedin a building and the ground floor doesnot contain dwelling units, only thosedwelling units located on the first floorof either Group R, Division 1 apartmentoccupancies or Group R, Division 3occupancies need comply with therequirements of this section.

The reference to ‘‘first floor’’ inException 2 above may be misleadingbecause floor numbers can vary fromone building to the next. For example,what is considered the first floor in onebuilding may be considered the secondfloor in another. Although the UBCintends on covering the first level ofliving above retail, parking, commercialspace, or private garages if the level at

grade does not contain dwelling units,its intention can be made more clear.


It is recommended that 1103.1.9.3,Exception 2 be modified as follows:

1103.1.9.3 Multi-unit dwellings:Exception: 2 Where no elevator

service is provided in a building and theground floor does not contain dwellingunits or guest rooms intended to beoccupied as a residence, only thosedwelling units and guest roomsintended to be occupied as a residencelocated on the first floor containingdwelling units or guest rooms intendedto be occupied as a residence above thefloor at grade of either Group R,Division 1 apartment occupancies orguest rooms intended to be occupied asa residence, or Group R, Division 3Occupancies need comply with therequirements of this section.

Multistory Dwelling Units—(DraftRecommendation Number 6)

The regulations determined that amultistory dwelling unit that does nothave an elevator internal to the unit thatis located in a building that does nothave an elevator is not a ‘‘coveredmultifamily dwelling’’ because theentire unit is not on the ground floor. 54FR at 3244. The Guidelines define a‘‘multistory dwelling unit’’ as adwelling unit with finished living spacelocated on one floor and the floor orfloors immediately above or below it. 56FR at 9500. A ‘‘single-story dwellingunit’’ is defined as a dwelling unit withall finished living space located on onefloor. 56 FR at 9501.

The UBC Defines ‘‘Multistorydwelling unit’’ as a dwelling unit withhabitable or bathroom space located onmore than one story. (UBC Chapter 11,Section 1102.) The UBC defines‘‘habitable space’’ as a space in astructure for living, sleeping, eating orcooking. Bathrooms, toiletcompartments, closets, halls, storage orutility space, and similar areas, are notconsidered habitable spaces. (UBC 209)

According to the UBC’s definition of‘‘multistory dwelling unit,’’ a unit isconsidered multistory if one levelcontains living or ‘‘habitable’’ space andthe floor next above or below containsonly a bathroom. According to thedefinitions in the Guidelines, a two-level unit with only a bathroom, or onlya bathroom and storage space on onelevel, is not a multistory dwelling unitbecause finished living space must belocated on both floors. Bathroom spacealone does not constitute living space,nor does bathroom and storage space.

Therefore, the UBC’s definition of‘‘multistory dwelling unit’’ does notmeet the Department’s interpretation ofthe Act, the regulations and theGuidelines of what constitutes a‘‘multistory dwelling unit.’’


It is recommended that the referenceto ‘‘or bathroom space’’ in the UBC’sdefinition of ‘‘multistory dwelling unit’’be deleted as follows:

Section 1102, Definitions:Multistory dwelling unit: For

application of the accessibilityrequirements, this term shall mean adwelling unit with habitable spacelocated on more than one story.


In this recommendation, theDepartment recommended that theExceptions to 1103.1.9.3 be modified toeliminate any reference to the term‘‘building’’ and replacing it with theterm ‘‘structure.’’ This wasrecommended both for consistency withthe charging paragraph, and in order toensure that the intent of the code, that,for purposes of accessibility, UBC treatsdwelling units in buildings separated byfirewalls as a single structure. Based onthe comments the Department receivedon this recommendation, theDepartment has withdrawn thisrecommendation.


The Guidelines specify sevenrequirements relating to accessibilitywhich reflect the language of the Actand the regulations. Compliance withthe provisions of the Guidelinesconstitutes a safe harbor for compliancewith the requirements of the Act. TheAct itself references the ANSI A117.1standard as a means for meeting thetechnical requirements of the Act. Asdiscussed in the Department’s policystatement, at the time the Act waspassed and the Guidelines were written,ANSI A117.1–1986 was in effect. Sincethat time, there have been twoadditional editions of ANSI A117.1published, the CABO/ANSI A117.1 in1992 and the ICC/ANSI A117.1 in 1998.

The Department believes thatcompliance with either of these newereditions of the ANSI A117.1 constitutesan additional safe harbor in terms ofdemonstrating compliance with thetechnical provisions of the Act’saccessibility requirements. It is, ofcourse, still necessary to refer to the Actand the regulations, or the Guidelines,for implementing the scoping



requirements. The Department believesthat code officials may rely on theedition of ANSI A117.1 that has beenadopted by the model code organizationor state or local jurisdiction, if it hasbeen adopted without modifications andis uniformly enforced.

The UBC utilizes the technical criteriacontained in CABO/ANSI A 117.1–1992. Therefore, the Department hasdetermined that there is no variancebetween the requirements of the Act andthe model code provision if the modelcode provision is based on CABO/ANSIA117.1–1992, even where those criteriadiffer from the ANSI A117.1–1986criteria or the Guidelines.



Requirement 1 of the Guidelinesincludes specifications for providing anaccessible entrance on an accessibleroute and explains that the requirementsapply to a single building on a site andto multiple buildings on a site. Inaddition, Requirement 1 includesspecifications for determining siteimpracticality based on terrain andunusual site characteristics. However,the Guidelines specify that coveredmultifamily dwellings with elevatorsshall be designed and constructed toprovide at least one accessible entranceon an accessible route, regardless ofterrain or unusual characteristics of thesite.

The UBC’s provisions are consistentwith the Act, the regulations, and theGuidelines, except as follows:



Individual Building Test—This testmay be used for all sites, but must beused for sites with a single buildinghaving a common entrance for all units.56 FR at 9503.



Step B states that the percentage ofground floor units that must be madeaccessible should be equal to the totalbuildable area of the undisturbed site(not including floodplains, wetlands, orother restricted areas) that has anexisting natural grade of less than 10%slope (previously determined in Step A)56 FR at 9504.


For example, according to theGuidelines’ site analysis test fordetermining impracticality due toterrain, if 60% of the total area of anundisturbed site has an existing naturalgrade of less than 10% slope, then 60%of the ground floor units are required tobe served by an accessible entrance onan accessible route. If we construct twobuildings not served by elevators on thatsite, each with 20 ground floor units fora total of 40 ground floor dwelling unitson the entire site, then 24 ground floordwelling units (60% of ground floorunits) must have an accessible entranceon an accessible route. In addition,according to step C of the site analysistest, all ground floor units in thebuilding, or ground floor units served bya particular entrance, shall be madeaccessible if the entrance to the units ison an accessible route.

Variance Related to Site Analysis Test—(Draft Recommendation Number 8)

Section 1103.1.9.3, Exception 4, of theUBC provides that the number of TypeB dwelling units in multiple non-elevator buildings on a single site isallowed to be reduced to a percentage ofthe ground floor units which is equal tothe percentage of the entire site havinggrades, prior to development, which are10% or less; but in no case shall thenumber of Type B units be less than20% of the ground floor dwelling unitson the entire site.

This Exception corresponds to StepsA and B of the site analysis test, exceptthat the Guidelines require the grades tobe ‘‘less than 10%’’. 56 FR at 9504. In

addition, the Exception fails to provideequivalent language to Step C—i.e., itdoes not require that, in addition to thepercentage of ground floor unitsrequired to be accessible, all groundfloor units in buildings, or ground floorunits served by a particular entrance,must be made accessible if the entranceto the units is on an accessible route. 56FR at 9504. Therefore, the UBC does notmeet this aspect of the Guidelines.

In addition, according to theGuidelines, regardless of siteconsiderations, an accessible entranceserved by an accessible route is practicalwhenever an elevator connects parkingwith a ground floor, in which case allground floor units are covered, orwhenever an elevated walk with a slopeno greater than 10% is planned betweenan entrance and a pedestrian orvehicular arrival point. 56 FR at 9504.The UBC does not include any languagethat reflects these requirements. As aresult, the UBC does not meet theseprovisions of the Guidelines.

In order to address theseinconsistencies, it is recommended theUBC include a modification to Section1103.1.9.3, Exception 4 as follows:


1103.1.9.3 Multi-unit dwellings:Exception 4: The number of Type B

dwelling units and Type B guest roomsprovided in multiple non-elevatorbuildings on a single site may bereduced to a percentage of the groundfloor dwelling units and ground floorguest rooms intended to be occupied asa residence, that is equal to thepercentage of the entire site havinggrades, prior to development, that areless than 10%; but in no case shall thenumber of Type B dwelling units orType B guest rooms be less than 20percent of the ground floor dwellingunits or ground floor guest roomsintended to be occupied as a residenceon the entire site. In addition to thepercentage established, all ground floorunits and ground floor guest roomsintended to be occupied as a residence,in a structure, or ground floor dwellingunits or ground floor guest roomsintended to be occupied as a residenceserved by a particular entrance shall beType B if any one of the followingapplies:4.1 The slope between the entrance to

the units or guest rooms intended tobe occupied as a residence and apedestrian or vehicular arrival pointis no greater than 8.33%; or

4.2 An elevator provides access to theground floor only; or

4.3 An elevated walkway with a slopenot exceeding 10 percent is planned



between an entrance and apedestrian or vehicular arrivalpoint. The slope of the walkway, insuch cases shall be reduced to nogreater than 8.3%.

Variance Related to Buildings withElevators—(Draft RecommendationNumber 9)

According to the Guidelines,buildings with elevators must providean accessible entrance on an accessibleroute regardless of site impracticality.56 FR at 9503.

The UBC, Exception 5, Section1103.1.9.3, states in relevant part that:

The required number of Type A andType B dwelling units shall not applyto a site where the lowest floor or thelowest structural building members isrequired to be at or above the base floorelevation resulting in * * *


It is recommended that Section1103.1.9.3, Exception 5 be modified toexempt buildings with elevators fromsite impracticality as follows:

Section 1103.1.9.3 Multi-unit dwellings:Exception 5. The required number of Type

A and Type B dwelling units and Type Bguest rooms shall not apply to a site wherethe lowest floor or the lowest structuralbuilding members of non-elevator buildingsis required to be at or above the base floorelevation resulting in * * *

Variance Related to Sites with UnusualCharacteristics—(DraftRecommendation Number 10)

The criteria in the Guidelines fordetermining site impracticality for siteshaving unusual characteristics specifiesthat an accessible entrance on anaccessible route is impractical when theunusual site characteristics result in adifference in finished grade elevationexceeding 30 inches AND 10 percent,measured between an entrance and allvehicular or pedestrian arrival pointswithin 50 feet of the planned entrance,and if none, then between the closestvehicular or pedestrian arrival point. 56FR at 9504.

The UBC does not reflect thisrequirement in Section 1103.1.9.3Exception 5. The UBC’s correspondingprovision states that the accessibilityrequirements shall not apply to a sitewhere the lowest floor or the loweststructural building members is requiredto be at or above the base flood elevationresulting in a difference in elevationbetween the minimum required floorelevation at the primary entrances andvehicular and pedestrian arrival pointswithin 50 feet exceeding 30 inches, ORa slope exceeding 10 percent between

the minimum required floor elevation atthe primary entrances and vehicular andpedestrian arrival points within 50 feet.The Guidelines specify that thedifference in finished grade elevationmust be both 30 inches and 10 percent.


It is recommended that Section1103.1.9.3, Exception 5, be modified asfollows:

5.1 A difference in elevation between theminimum required floor elevation at theprimary entrances and vehicular andpedestrian arrival points within 50 feet (15240 mm) exceeding 30 inches (762 mm),AND * * *


The Act and the regulations providethat covered multifamily dwellings witha building entrance on an accessibleroute be designed and constructed in amanner so that the public and commonuse areas are readily accessible to andusable by people with disabilities. 42U.S.C. 3604 (f)(3)(C)(i); 24 CFR100.205(c)(1). The Guidelines’Requirement 2 cites the appropriatesection of the ANSI A117.1–1986Standard for the technical provisions for15 accessible elements or spaces, anddescribes the application of thespecifications including modificationsto the referenced Standard. 56 FR at9505.

Following are the 15 basic elements orspaces for accessible and usable publicand common use areas or facilities:

Accessible routesProtruding objectsGround and floor surface treatmentsParking and passenger loading zonesCurb rampsRampsStairsElevatorsPlatform liftsDrinking fountains and water coolersToilet rooms and bathing facilitiesSeating, tables, or work surfacesPlaces of assemblyCommon-use spaces and facilitiesLaundry rooms

56 FR at 9505. When a variance isidentified in the UBC that does not meetthe requirements of the Guidelines foreach of the 15 elements or spaces above,it is noted below.

Preliminarily, it is noted that Section1103.1.9.1, General, provides that roomsand spaces available to the generalpublic and spaces available for the useof residents that serve Group R, Division1 occupancy accessible dwelling unitsshall be accessible. This section doesnot require accessibility in rooms and

spaces available to the general public inGroup R, Division 3 occupancies whichare covered by Section 1103.1.9.3,Multi-unit dwellings. This is notequivalent to the accessibilityprovisions of the Guidelines.


It is recommended that the UBCmodify Section 1103.1.9.1, General, byincluding Group R, Division 3occupancies as follows:

Section 1103.1.9.1, General:Group R Occupancies shall be accessible as

provided in this chapter. Rooms and spacesavailable to the general public and spacesavailable for the use of the residents thatserve accessible dwelling units andaccessible guest rooms in Group R, Division1 and Division 3 occupancies shall beaccessible.

Accessible Route(s)



The UBC Section 1103.2.2 containslanguage which is comparable to theGuidelines with one exception. Thatsection states:

For Group R, Division 1 apartmentoccupancies, when the slope of thefinished grade between accessiblebuildings and facilities exceeds 1 unitvertical in 12 units horizontal (8.33%slope), or when physical barriers of thesite prevent the installation of anaccessible route, a vehicular route withparking at each accessible building orfacility may be provided in place of theaccessible route.

The UBC does not include languagemaking it clear that accessible parkingmust be available at the accessiblefacility if access is provided by avehicular route.


It is recommended that the UBCSection 1103.2.2, Accessible route, bemodified to include the followinglanguage:



If the slope of the finished ground levelbetween accessible facilities and buildingsexceeds one unit vertical in 12 unitshorizontal, or where physical barriersprevent the installation of an accessibleroute, a vehicular route with accessibleparking spaces in accordance with AppendixChapter 11 at each public or common usefacility or building is permitted in place ofthe accessible route.


Based on the public commentsreceived, the Department hasdetermined that the UBC adequatelyaddresses this issue.

Parking and Passenger Loading Zones—(Draft Recommendation Numbers 14, 15and 16)

Division I of Appendix Chapter 11includes the only provisions foraccessible parking and passengerloading zones. These provisions do notapply if the appendix is not specificallyadopted. Therefore, a jurisdiction thatadopted the UBC 1997 without theAppendix would not meet theaccessibility requirements of the Act,regulations and Guidelines.


It is recommended that AppendixChapter 11 be automatically adopted bya jurisdiction that adopts UBC 1997.

The Questions and Answers Aboutthe Guidelines (Question and Answer14c) state that where there are severalindividual parking garages groupedtogether either in a separate area of thebuilding (such as at one end of thebuilding, or in a detached building), forassignment or rental to residents, atleast 2% of the garages must be at least14′2″ wide and have a vehicular door atleast 10′ wide. 59 FR at 33366. Thisrequirement assumes that garageparking is the only type of parkingprovided at the site.

Question and Answer 14c providesthe minimum requirement for the widthof accessible garages and garage doors.The minimum widths provide enoughspace for an automobile to enter thegarage, and for a passenger or driverusing a wheelchair to exit through thegarage door without interference by theautomobile. However, the minimumrequirements do not preclude a garagedesign that provides equivalent orgreater accessibility. For example, adesigner may choose to design a garagewith a door that is 8 feet wide, butinclude a separate accessible exit doorthrough which the driver or thepassenger may exit, provided that itconnects to the accessible route to theentrance of the unit.

The UBC does not provide minimumrequirements for these garages, andtherefore, does not meet provision of theGuidelines.

The Guidelines provide that ifprovided at the site, there must beaccessible visitor parking sufficient toprovide access to grade level entrancesof covered multifamily dwellings, andaccessible parking at facilities. TheGuidelines also require accessibleparking on the same terms and with thefull range of choices (e.g., surfaceparking or garage) that are provided toother residents of the project. 56 FR at9505.

In addition, the Questions andAnswers About the Guidelines providefurther clarification of the parkingrequirements at Q&A 14(b) by statingthat when more than one type ofparking is provided, at least one spacefor each type of parking should be madeaccessible even if this number exceeds2%.

The Department is not recommendingthat the UBC revise any of its broaderscoping requirements for parking.However, the UBC does not includecomparable language in AppendixChapter 11 with respect to the abovevariances. Therefore, the UBC does notmeet the provisions of the Guidelineswith respect to these issues.


In order to address the inconsistenciesoutlined above, it is recommended thatthe UBC add the following language toSection 1108:

At least 2% of parking garages provided forR–2 and R–3 occupancies required to haveType B dwelling units or Type B guestrooms, where there are several individualgarages grouped together, either in a separatearea of a building or in a detached building,for assignment or rental to residents, must beat least 14′2″ wide and have a vehicular doorat least 10′ wide.

Where accessible parking spaces areprovided, at least one of each type (surfaceparking, carports, or garage) shall beprovided. Where visitor parking is provided,at least one accessible visitor parking spaceshall be provided.

Where parking is provided at public andcommon use facilities that serve accessiblebuildings, at least one accessible parkingspace shall be provided.

and modify the third provision under Section1108 as follows:

3. For Group R, Division 1 and Group R,Division 3 occupancies containing accessibleor adaptable dwelling units or guest roomsintended to be occupied as a residence,where parking is provided, 2 percent of theparking spaces shall be accessible * * *

In addition, Section 1108.3, Signs,provides an exception which states that

accessible parking space signs need notbe provided in parking garages orparking facilities that have five or lesstotal parking space. This exception doesnot meet the requirements of theGuidelines which requires signage at allaccessible parking space.


It is recommended that the UBCdelete this exception. If this exception isdeleted from the charging paragraph,then signs will be required at allaccessible parking spaces.

Elevators—(Draft RecommendationNumbers 17 and 18)

The Guidelines require that elevatorson accessible routes be accessibleaccording to the technical specificationsof ANSI A117.1, Section 4.10, Elevators.56 FR at 9505. Section 1105.3 of theUBC, Elevators and Stairway andPlatform Lifts, states that elevators on anaccessible route shall be accessible. Italso states that elevators required to beaccessible shall be designed andconstructed to comply with CABO/ANSI A117.1–1992. The technicalspecifications for elevators required byboth the Guidelines and the UBC areequivalent.

However, the UBC provides anexception to Section 1105.3 whichstates that private elevators serving onlyone dwelling unit need not beaccessible. This does not meet therequirements of the Guidelines becauseelevators within multistory units mustprovide accessibility.


It is recommended that the exceptionunder Section 1105.3 be deleted.

The UBC provides an exception toSection 1104.1.3, Elevators, which statesthat elevators need not be provided tofloors provided with a horizontal exitand located at or above the level of exitdischarge in fully sprinklered buildings.This exception does not meet therequirements of the Guidelines thatrequires elevators, if provided to unitsother than the ground floor, provideaccess to all floors.


It is recommended that the exceptionunder Section 1104.1.3 be deleted.

Laundry Rooms—(DraftRecommendation Number 19)

The Guidelines state that if providedin the facility or at the site, at least oneof each type of appliance provided ineach laundry area shall be accessible.



UBC Section 1103.1.9.1, General, statesthat Group R Occupancies shall beaccessible as provided in Chapter 11.Rooms and spaces available to thegeneral public and spaces available forthe use of residents that serve Group R,Division 1 Occupancy accessibledwelling units, which includes laundryfacilities, shall be accessible. The UBCdoes not include Group R, Division 3occupancies in Section 1103.1.9.1,which does not meet the requirementsof the Guidelines.

Recommendation Number 14 (DraftRecommendation Number 19)

It is recommended that Section1103.1.9.1 be modified to include GroupR, Division 3 occupancies.

Recreational FacilitiesThe Guidelines, in Requirement 2,

state that: ‘‘If provided in the facility orat the site; (a) where multiplerecreational facilities (e.g., tennis courts)are provided sufficient accessiblefacilities of each type to assure equitableopportunity for use by persons withhandicaps’ shall be provided. Thesefacilities must be connected by anaccessible route to the covered dwellingunits or a vehicular route if anaccessible route is not possible.’’ TheUBC Section 1103.1.9.1 requires 25%,but not less than one, of recreationalfacilities of each type in each group tobe accessible.

The Department concludes that theGuidelines may be interpreted to bestricter than the requirements of theUBC with respect to the requirement foraccessible recreational facilities becausean interpretation of ‘‘sufficient toprovide equitable opportunity for use’’may result in determinations thatrecreational facilities that serve differentbuildings containing accessibledwelling units must be accessible, evenif this means making all of the sametype of recreational facility accessible(such as two swimming pools on a largesite, each of which serves differentbuildings on the site).


However, because this matter was notincluded in the draft reports, and therehas not been an opportunity for publicparticipation in a resolution of thismatter, the Department is not includinga recommendation to resolve this

matter. The Department will work withall interested parties to address thismatter.

Requirement 3: Usable DoorsThe Act and regulations require that

all doors designed to allow passage intoand within a covered dwelling unit besufficiently wide to allow passage bypersons in wheelchairs. 42 U.S.C. § 3604(f)(3)(C)(ii); 24 CFR 100.205(c)(2). TheGuidelines set forth criteria to meet thisrequirement. The Guidelines also setforth additional guidance regardingdoors that are a part of an accessibleroute in the public and common useareas of multifamily dwellings and todoors into and within individualdwelling units. 56 FR at 9506.



Within individual dwelling units,doors intended for user passage throughthe unit which have a clear opening ofat least 32 inches nominal width whenthe door is open 90 degrees, measuredbetween the face of the door and thestop, would meet the Act’s requirement.

The Department has determined thatthe UBC meets the requirements of theAct, regulations, and the Guidelines forusable doors.


The Act and regulations require thatall covered multifamily dwellings witha building entrance on an accessibleroute shall be designed and constructedin such a manner that all premiseswithin covered multifamily dwellingunits contain an accessible route intoand through the covered dwelling unit.42 U.S.C. § 3604 (f)(3)(C)(iii)(I); 24 CFR100.205 (c)(3)(i). Requirement 4 of theGuidelines sets forth criteria to meetthis requirement. 56 FR at 9509–10. TheUBC meets the provisions of the Act,regulations, and Guidelines with respectto Requirement 4, except the following.


Among the criteria for Requirement 4is the provision that in multistorydwelling units in buildings withelevators, the story of the unit that isserved by the building elevator is theprimary entry to the unit. 56 FR at 9507.

One of the UBC’s exceptions to therequirement for Type B units provides,in Section 1103.1.9.3, as follows:

A multistory dwelling unit not providedwith elevator service is not required to

comply with requirements for Type Bdwelling units. Where a multistory dwellingunit is provided with elevator service to onlyone floor, the floor provided with elevatorservice shall comply with the requirementsfor a Type B dwelling unit, and a toiletfacility shall be provided on that floor.

The UBC does not mention in thisexception that where a multistorydwelling unit is provided with elevatorservice, the story served by the elevatormust be the primary entry to the unit.As a result, the UBC does not meet therequirements of the Guidelines in termsof the exceptions for multistory units inbuildings served by elevators.


It is recommended that the UBCmodify Section 1103.1.9.3, Exception 3as follows:

1103.1.9.3 Multi-unit dwelling: Amultistory dwelling unit not provided withelevator service is not required to complywith requirements for Type B dwelling units.Where a multistory dwelling unit is providedwith elevator service to only one floor, thefloor provided with elevator service shall bethe primary entry to the unit, shall complywith the requirements for a Type B dwellingunit, and a toilet facility shall be provided onthat floor.

Requirement 5: Light Switches,Electrical Outlets, Thermostats, andOther Environmental Controls inAccessible Locations

The Act and regulations require thatall covered multifamily dwellings witha building entrance on an accessibleroute shall be designed and constructedso that all premises within the coveredunits contain light switches, electricaloutlets, thermostats, and otherenvironmental controls in accessiblelocations. 42 U.S.C. § 3604(f)(3)(C)(iii)(II); 24 CFR 100.205.Requirement 5 of the Guidelines setsforth criteria to meet theserequirements. The UBC meets theprovisions of the Act, regulations, andGuidelines with respect to Requirement5.

Requirement 6: Reinforced Walls forGrab Bars

Requirement 6 of the Guidelines setsforth technical specifications to meetthe requirements of the Act at 42 U.S.C.3604 (f)(3)(C)(iii)(III) and the regulationsat 24 CFR 100.205(c)(3)(iii), whichspecifies that all covered multifamilydwellings with a building entrance onan accessible route shall be designedand constructed so that all premiseswithin the covered units containreinforcements in bathroom walls toallow later installation of grab barsaround toilet, tub, shower stall and



shower seat, where such facilities areprovided. 56 FR at 9509–10.

Although it is the intent of the UBCat Section 1106.6.3 to require grab barreinforcement at fixtures located awayfrom walls, sunken or raised tubs forexample, the UBC is not clear on thisissue.


It is recommended that the UBCmodify Section 1106.6.3, Toilet andbathing fixtures by adding thefollowing:

Where fixtures are located away fromwalls alternative reinforcementcomplying with CABO/ANSI A117.14.24.2.5 and 4.24.3 shall be provided forthe mounting of grab bars.


The Act and regulations provide thatall covered multifamily dwellings witha building entrance on an accessibleroute shall be designed to have usablekitchens and bathrooms such that anindividual in a wheelchair canmaneuver about the space. 42 U.S.C.§ 3604 (f)(3)(C)(iii)(IV); 24 CFR 100.205.Requirement 7 of the Guidelines setsforth technical criteria to meet thoserequirements. 56 FR at 9511–15.

Usable Kitchens—(DraftRecommendation Number 22)

The Guidelines address a parallelapproach to kitchen sinks inRequirement 7 at 56 FR at 9511. Theparallel approach to the sink isaddressed in Figure 7(c). 56 FR at 9514.The ANSI A117.1–1986 standardrequires, with respect to sinks andlavatories, a forward approach withclear floor space below, and illustratesthe forward approach centered on thesink/lavatory. (ANSI A117.1 1986,Fig.32 on page 50.) The Department’sGuidelines allowed a departure from theANSI standard. 56 FR at 9511–12. TheGuidelines permit the clear floor spaceto be designed for a parallel position.While the Guidelines only show theclear floor space centered on thelavatory [Fig. 7 (c)], it is equallyapplicable to the sink.

UBC Section 1106.5.2, Clear floorspace, requires that a 30-inch-by-48-inch minimum clear floor space beprovided at the sink and at eachappliance. Provision 1, under Section1106.5.2, states that the clear floor spaceat the sink shall be positioned for aparallel approach which must extend 15inches minimum from each side of thesink centerline. This does not meet therequirements of the Guidelines. The

Guidelines require the centering of theparallel approach on the sink.


It is recommended that the UBCdelete the 15-inch offset requirementand modify Provision 1, Section1106.5.2, Clear floor space as follows:

1. The clear floor space at the sinkshall be positioned for a parallelapproach. The clear floor space shall becentered on the sink.

Usable Bathrooms—(DraftRecommendation Number 23)

The Guidelines provide two optionsfor designing accessible bathrooms. Thefirst option requires a minimal level ofaccessibility. This option requires thatwalls be reinforced for grab bars andsufficient maneuvering space beprovided within the bathroom for aperson using a wheelchair or othermobility aid to enter, close the door, usethe fixtures, reopen the door and exit.56 FR at 9511.

The second option for designingaccessible bathrooms provides a greaterlevel of accessibility than that providedby the first option. The second optionrequires that they have reinforced wallsfor grab bars, clear space at specificlocations within the bathroom to permituse of the fixtures, and specificclearances for fixtures. 56 FR at 9511.

According to the Guidelines, forcovered multistory dwellings in elevatorbuildings, only bathrooms on theaccessible level are subject to therequirements. If a powder room is theonly facility provided on the accessiblelevel of a multistory dwelling unit, itmust comply with the first or secondoption for designing accessiblebathrooms and have reinforcement forgrab bars.

As discussed in reference to kitchensabove, the Guidelines require thecentering of the parallel approach on thelavatory. 56 FR at 9512. The UBCrequires an offset of 15 inches whichdoes not meet the Guidelines’requirement.


It is recommended that the referenceto 15 inches be deleted from Sections1106.6.4.1.1, Lavatory, and Section1106.6.4.2.1, Lavatory, and replacedwith the following:

* * * Clear floor space positioned for aparallel approach shall be centered on thelavatory.

Chapter 5: Standard Building CodeAnalysis

I. PurposeThe purpose of this report is to

identify provisions of the 1997 editionof the Standard Building Code (SBC),published by the Southern BuildingCode Congress International (SBCCI)that do not meet the requirements of theFair Housing Act (Act), the Fair HousingAct regulations, or the Fair HousingAccessibility Guidelines (theGuidelines). Where variances areidentified, Steven Winter Associates,Inc. (SWA) recommends how they maybe revised to meet the requirements ofthe Act, the Fair Housing Actregulations, or the Guidelines. The 1999edition of the SBC was published onJanuary 29, 1999. A review of the 1999edition of the SBC is not part of thescope of the following analysis.

II. MethodologyThe analysis of the SBC consisted of

the following:—A review of the language of the Act,

42 U.S.C. 3604 (f)(3)(C), the FairHousing Act regulations at 24 CFR100.201 and 205, the Fair HousingAccessibility Guidelines, 56 FR at9472–9515, and the June 28, 1994Supplement to Notice of Fair HousingAccessibility Guidelines: Questionsand Answers About the Guidelines,59 FR at 33362–33368 (the Questionsand Answers About the Guidelines);

—A review of the December 15, 1997copyrighted comparative matrixdeveloped by the International CodeCouncil (ICC), Building Officials &Code Administrators International(BOCA), International Conference ofBuilding Officials (ICBO), SouthernBuilding Code Congress International(SBCCI), and the Council of AmericanBuilding Officials (CABO). Thematrix, which was included withHUD’s Request for Quotations for thisanalysis consists of a side-by-sidecomparison of the Guidelines with thecorresponding accessibility provisionsof the three model building codes andthe SBC. SWA began its analysis ofthe SBC by reviewing the column ofthe matrix that includes the SBC’saccessibility requirements andcomparing them with the column thatincludes the provisions of theGuidelines. The matrix review wasconducted to identify apparentvariances between SBC’s accessibilityrequirements and those of the Act,regulations, and Guidelines.

— A review of the accessibilityprovisions of the 1997 edition of theStandard Building Code (hereinreferred to as the SBC); and a review



of applicable referenced codes andstandards, including: AmericanNational Standards Institute (ANSI)A117.1–1986, which is referenced inthe regulations, and CABO/ANSIA117.1–1992, the title of the standardreferenced by the SBC. Because thematrix did not include full text of thetechnical provisions, it was necessaryto use these standards as companiondocuments in assessing the matrix,the Guidelines, and the SBC. Theywere reviewed to identify anyvariances from the Act, regulations, orGuidelines in the technical provisionsrequired by each.

—Interviews with John Battles, Vice-President, Technical Services, to gaininsight into how the SBC responds tovariances that SWA identified. SWAfound it necessary to understandSBCCI’s interpretations of its ownrequirements that may not beapparent when reviewing code text.The original analysis of the SBC was

submitted to HUD on September 27,1999. HUD formed a Model CodeWorking Group consisting ofrepresentatives from the Office of FairHousing and Equal Opportunity, theOffice of General Counsel; and theOffice of Housing. A representative ofthe U.S. Department of Justice alsoparticipated on the Working Group. TheWorking Group met with SWA onSeptember 29, 1999, and askedquestions and made comments andsuggestions about the analysis.

The draft report was made availablefor public comment on October 26,1999, and a public meeting on the draftreports was held on November 10, 1999.Written comments on the report werereceived. All comments were reviewedand considered. This final reportincorporates many of those commentsand has been revised from the draftreport.

III. The Standard Building CodeThe SBCCI administers the SBC series

of model regulatory construction codes.Compliance with the SBC modelbuilding code is not required unlessadopted by reference by a jurisdiction’sboard, council, or other authoritativegoverning body.

The 1997 SBC includes provisions foraccessibility intended to reflect theintent of the Guidelines. The 1994 SBCwas the first attempt at codifying theFair Housing Act accessibilityrequirements. Type B dwelling unitsaccessibility criteria was codified in the1997 SBC.

Unlike the Fair Housing Act, the SBCis a model building code and not a law.It provides minimum standards forpublic safety, health and welfare as they

are affected by building construction.Compliance with the SBC is notrequired unless adopted by reference bya jurisdiction’s board, council, or otherauthoritative governing body.Jurisdictions may adopt a modelbuilding code in its entirety or withmodifications; hence, the building codesare referred to as ‘‘model codes.’’

Historically, model building codeshave required that a certain percentageor number of dwelling units in definedresidential uses meet the standards forfull accessibility as defined by ANSIA117.1. These dwelling units arereferred to in the SBC in Section 202 asa ‘‘Type A dwelling unit.’’ A ‘‘Type Bdwelling unit,’’ which is defined inSection 202 as ‘‘a dwelling unitdesigned and constructed foraccessibility in accordance with 1110’’is an attempt to incorporate therequirements of the design andconstruction requirements of the Act,the regulations, and the Guidelines. TheSBC refers to CABO/ANSI A117.1–1992for the technical provisions for Type Bunits.

It is the Department’s understandingthat SBCCI will no longer publishsubsequent updates to the latest versionof the SBC. The four model codeorganizations have joined with the ICCto produce one international buildingcode under the ICC, the first of whichwill be published as the InternationalBuilding Code 2000 early in the year2000.

IV. Scoping Provisions

Building codes have two majorcomponents that are relevant to thisanalysis. One component describes thetechnical standards that should beapplied during the design andconstruction or alteration of a buildingor structure or elements within astructure. The other component is adescription of the types of buildings orstructures or elements within a structureto which the technical standards areapplied. The provisions in this secondcomponent are referred to as ‘‘scoping’’provisions. This section of the analysissets forth areas where the scopingprovisions of the SBC do not include allof the dwelling units, buildings, or usesthat are covered by the Act, theregulations, or the Guidelines. Thisanalysis of the scoping provisions of theSBC included an examination of thefollowing:SBC’s definition of dwelling unit,

building, structure, and ground floordwelling unit;

SBC’s classification of residentialbuildings according to use andoccupancy; and

SBC’s scoping of dwelling units towhich the accessibility provisionsapply.This analysis concludes that the SBC

covers most of the same dwelling units,buildings and residential uses as theAct, regulations, and Guidelines. Forexample, SWA concluded that, inbuildings with four or more dwellingunits, apartments, custom-designedcondominiums, multistory units withinternal elevators, single storytownhouses, and modular units arecovered. Additions of four or more unitsto existing buildings are includedwithin the SBC’s scoping requirementsfor Type B dwelling units. However, theDepartment has concluded that thefollowing provisions of the SBC do notor may not include ‘‘coveredmultifamily dwellings’’ as they aredefined in the Act, regulations, orGuidelines. 42 U.S.C. § 3604 (f)(7); 24CFR 100.201; 56 FR at 9500.

SBC Classification of Residential UseGroups

The SBC defines residentialoccupancies (Group R occupancies), insection 311.2 of the code, as follows:R1: Residential occupancies where the

occupants are primarily transient innature including:

Boarding houses (transient)HotelsMotels

R2: Multiple dwellings where theoccupants are primarily permanent innature, including:Apartment housesConventsDormitory facilities which

accommodate six or more personsof more than 21⁄2 years of age whostay more than 24 hours

FraternitiesMonasteriesRectoriesRooming houses (not transient)

R3: Residential occupancies includingthe following:Child care facilities which

accommodate five or less childrenof any age for any time period

One and two family dwellings wherethe occupants are primarilypermanent in nature and notclassified as R1, R2, or I

Rooming houses (transient)R4: Residential Care/Assisted Living

Facilities housing six or moreoccupants on a 24 hour bases; theseoccupancies include the following:Alcohol and drug abuse centersAssisted living facilitiesCongregate care facilitiesConvalescent facilitiesHalfway houses



Group homesResidential board and care facilitiesSocial rehabilitation facilitiesAccording the SBC, Group R2

occupancies containing four or moredwelling units and Group R3occupancies where there are four ormore dwelling units in a singlestructure, all dwelling units shall beType B dwelling units. Type B dwellingunits are defined as units that aredesigned and constructed foraccessibility in accordance with Section1110, Chapter 11, Accessibility. Section1110, Type B dwelling units providesthe design and constructionrequirements for Type B units.

Definition of Dwelling Unit—(DraftRecommendation Number 1)


a single unit of residence for a family ofone or more persons. Examples of dwellingunits include: a single family home; anapartment unit within an apartment building;and in other types of dwellings in whichsleeping accommodations are provided buttoileting or cooking facilities are shared byoccupants of more than one room or portionof the dwelling, rooms in which peoplesleep. Examples of the latter includedormitory rooms and sleepingaccommodations in shelters intended foroccupancy as a residence for homelesspersons.

24 CFR 100.201.It is clear from the discussion in the

Preamble to the Regulations, found at 54FR at 3244, that the Departmentintended that each sleeping roomintended for occupancy by a separatehousehold in a building with sharedtoileting or kitchen facilities would beconsidered a separate dwelling unit, andthat buildings with four or more of thesesleeping accommodations are ‘‘coveredmultifamily dwelling units’’ forpurposes of the Act.

Of course, a detached building thathas four or more sleeping rooms withshared toileting or kitchen facilities andthat is intended for occupancy by onehousehold is not considered to be a‘‘covered multifamily dwelling’’ underthe Act. For example, a detached singlefamily house with four bedroomsoccupied by four or more personsrelated by birth or marriage is not acovered multifamily dwelling. Inaddition, a single family house occupiedby four or more unrelated persons thatfunctions as one distinct household,such as what is commonly referred to asa ‘‘group home’’ would not beconsidered to be a ‘‘covered multifamilydwelling’’ for purposes of theapplication of the design andconstruction requirements of the Act.

This latter example is consistent withcase precedent and the position of theDepartment and the Department ofJustice with respect to the application ofzoning and land use restrictions tosingle family group homes.

The SBC defines the term ‘‘dwellingunit’’ in Chapter 2, Definitions, asfollows:

A single unit providing complete,independent living facilities for one ormore persons including permanentprovisions for living, sleeping, eating,cooking and sanitation.

As a result, many of the examples ofR2 and R3 residences provided by theSBC are not covered by the accessibilityprovisions in Section 1105.4.2 becausethey do not fall under the SBC’sdefinition of ‘‘dwelling unit.’’ Adwelling unit, according to interviewswith John Battles, Vice-President,Technical Services at SBCCI, cannothave sleeping rooms with sharedcommon facilities. For example, theSBC lists convents, dormitory facilitieswhich accommodate six or more peoplewho stay more than 24 hours,fraternities, sororities, monasteries,rectories, and rooming houses (nottransient), as examples of R2occupancies. However, if these uses arecomposed of sleeping rooms withshared toileting or cooking, they do notfall under the SBC’s definition of‘‘dwelling unit.’’ Mr. Battles confirmedthat the only occupancy examples thatfall under the SBC’s definition of‘‘dwelling unit’’ are apartment houses(R2) and one and two family dwellings(R3).

In its draft report, SWA proposedrevising the SBC definition of ‘‘dwellingunit’’ to be consistent with theregulations, to include sleeping roomsoccupied by separate households. Inresponse to comments on the draftreport, the Department has determinedthat it would withdraw thisrecommendation. Instead, theDepartment proposes that the SBC berevised to include a new term; ‘‘sleepingunit.’’ The scoping requirements ofChapter 11 have been revised to addreferences to both dwelling and sleepingunits. Therefore, the formerRecommendation Number 1 has beeneliminated.


It is recommended that the SBC berevised to add a definition to 202 asfollows:

Sleeping unit: A room in which peoplesleep intended to be occupied as a residence.


In Draft Recommendation 2, it wasrecommended that the SBC be revised tomake clear that certain types of housingthat may be viewed as transient aredwellings subject to the requirements ofthe Fair Housing Act, including thedesign and construction requirements.This housing may include timeshares,residential hotels and motels, boardinghouses, and homeless shelters. The SBCdoes not define what ‘‘transient’’ means,though it uses this term in specifyingwhat occupancies come within the R1Use Group. According to Section1105.4.2, the SBC accessibilityprovisions apply to Group R2 and R3occupancies, but not Group R1. Sincetransient boarding houses and non-transient hotels and motels areclassified as R1, they are not covered byChapter 11. The SBC classifies transientrooming houses as R2 but classifiestransient boarding houses as R1. Thebasis for this distinction in the code isunclear. However, according to Mr.Battles, hotels and boarding houseswould not be covered under theprovisions of Section 1105.4.2,apparently under any circumstances.Therefore, the SBC does not meet therequirements of the Act, the regulations,or the Guidelines. To make clear thatboarding houses, hotels and motels thatare not transient are subject to the Act’sdesign and construction requirementsand should meet chapter 11’srequirements as well, it was suggestedthat the SBC be revised. Accordingly,draft Recommendation 2 suggested thatthese three occupancies and non-transient homeless shelters be added tothe list of occupancies in the R2 UseGroup.

Factors that should be considered indetermining whether an occupancy istransient or not are: (1) Length of stay;(2) Whether the rental rate for the unitwill be calculated based on a daily,weekly, monthly or yearly basis; (3)Whether the terms and length ofoccupancy will be established through alease or other written agreement; (4)What amenities will be included insidethe unit, including kitchen facilities; (5)How the purpose of the property ismarketed to the public; (6) Whether theresident possesses the right to return tothe property; and (7) Whether theresident has anywhere else to which toreturn.

Accordingly, because the above-described types of housing which aresubject to the Act are not required tomeet the SBC’s Chapter 11requirements, the SBC is not consistentwith the Act, its regulations and the



Guidelines. At this time, the Departmentis uncertain how best to resolve thisinconsistency between the SBC and theDepartment’s regulations. Therefore, theDepartment is withdrawing its draftrecommendation on this issue.However, HUD will continue to workwith the SBC and other interested codeorganizations to develop language thatappropriately conveys to builders anddesigners that certain short-termresidencies must meet the Act’saccessibility requirements. In themeantime, the Department believes theabove factors must be considered byowners, builders, and architects indetermining whether the requirementsof the Act apply to the design andconstruction of buildings with rooms forshort term occupancy.


The Act defines a ‘‘dwelling’’ as ‘‘anybuilding, structure, or portion thereofwhich is occupied as, or designed orintended for occupancy as, a residenceby one or more families* * *’’. 42U.S.C. 3602 (b). Such a building mayserve more than one purpose. Somebuildings, known as continuing carefacilities, residential care facilities, orassisted living facilities, serve both as aresidence for their occupants and as aplace where the occupants receivepersonal, medical or other supportservices.

As mentioned in the discussion oftransient residential uses above, theQuestions and Answers About theGuidelines addressed the issue ofwhether the design and constructionrequirements of the Act apply tocontinuing care facilities whichincorporate housing, health care andother types of services. That publicationstates:

The new construction requirements of theFair Housing Act would apply to continuingcare facilities if the facility includes at leastone building with four or more dwellingunits. Whether a facility is a ‘‘dwelling’’under the Act depends on whether thefacility is to be used as a residence for morethan a brief period of time. As a result, theoperation of each continuing care facilitymust be examined on a case by-case basis todetermine whether it contains dwellings.Factors that the Department will consider inmaking such an examination include, but arenot limited to: (1) The length of time personsstay in the project; (2) whether policies arein effect at the project that are designed andintended to encourage or discourageoccupants from forming an expectation andintent to continue to occupy space at theproject; and (3) the nature of the servicesprovided by or at the project.

59 FR at 33364.

As a result of the application of thesefactors, and the regulations’ definitionof ‘‘dwelling unit,’’ the Departmentconsiders that residential care/assistedliving facilities with four or moredwelling units, including sleepingrooms occupied by separate householdswith shared toileting or kitchenfacilities, and nursing homes, to be‘‘covered multifamily dwellings’’ forpurposes of the accessibilityrequirements of the Act.

The SBC classifies residential care/assisted living facilities as R4 residentialuses. Section 202 of the Code definesResidential Care/Assisted LivingOccupancies as follows:

A building or part thereof housing six ormore persons, on a 24 hour basis, whobecause of age, mental disability or otherreasons, live in a supervised residentialenvironment which provides personal careand supportive services. The occupants aremostly capable of responding to anemergency situation without assistance fromstaff. And this occupancy subclassificationshall include residential board and carefacilities, assisted living facilities, halfwayhouses, group homes, congregate carefacilities, social rehabilitation facilities,alcohol and drug abuse centers andconvalescent facilities.

There are no scoping provisions inChapter 11 related to the R4classification. R4 occupancies are notcovered under Section 1105.4.2. It isunclear whether this is an oversight, orwhether all R4 occupancies are coveredunder some other accessibility standard.


It is recommended that the definitionof ‘‘sleeping unit’’ contained inRecommendation Number 1 be adoptedand Section 1105.4 be modified to adda new section, that provides thefollowing, in addition to any otherapplicable accessibility criteria underSection 504 of the Rehabilitation Act of1973 and the Americans withDisabilities Act of 1990:

In R4 occupancies, all ground floordwelling and sleeping units in structures offour or more dwelling or sleeping units thatare not served by elevators, and all dwellingand sleeping units in structures of four ormore dwelling and sleeping units served byelevators shall be Type B.

Nursing homes occupied by six ormore persons (both intermediate carefacilities and skilled nursing facilities)are classified in section 309.1 of thecode as Group I UnrestrainedOccupancy. This classification isdefined below:

Group I Unrestrained Occupancy. Group IUnrestrained included buildings or portionsthereof used for medical, surgical,

psychiatric, nursing, or custodial care on a 24hour basis of six or more persons who are notcapable of self-preservation. Facilities withfive or less persons not ancillary to other usesare classified as a residential occupancy.

The relevant accessibility standardsrequired for Group I (Unrestrained,Section 1105.3.3, 1105.3.5) are asfollows:

Group I Institutional1105.3.3: In Group I Unrestrained nursing

homes, at least 50%, but not less than one,of the patient sleeping rooms and theirbathing and toilet facilities shall beaccessible.

1105.3.5: In Group I Unrestrainedoccupancies, at least one accessible entranceshall include a passenger loading zonecomplying with CABO/ANSI A117.1–1992.


To ensure that the SBC covers thesame dwelling units required to provideaccessibility according to the Act, theregulations, and the Guidelines, it isrecommended that the SBC be revisedas follows:

Modify Sections 1105.3.3, 1105.4.1,1105.4.2, 1105.4.3 as follows:

1105.3.3: Group I Unrestrained nursinghomes, at least 50%, but not less than one,of the patient sleeping rooms and theirbathing and toilet facilities shall beaccessible. In addition, in unrestrainednursing homes of Group I, in structures withfour or more sleeping units, sleeping unitsshall comply with the requirements for TypeB sleeping units as required by 1107.4.2 withthe same exceptions as provided for inSection 1107.4.2.

1105.4.1: In Group R1 occupanciescontaining 6 or more guest rooms, one for thefirst 30 guest rooms and one additional foreach additional 100 guest rooms or fractionthereof shall be accessible. In hotels withmore than 50 sleeping rooms or suites, roll-in type showers shall be provided in one-half, but not less than one, of the requiredaccessible sleeping rooms or suites. Inaddition, in Group R1 occupancies instructures with four or more sleeping units,sleeping units shall comply with therequirements for Type B sleeping units asrequired by 1107.4.2 with the sameexceptions as provided for in Section1107.4.2.

1105.4.2: In Group R2 occupanciescontaining four or more dwelling or sleepingunits and Group R3 occupancies where thereare four or more dwelling or sleeping unitsin a single structure, all dwelling andsleeping units shall be Type B. In Group R2occupancies containing more than 20dwelling units, at least 2%, but not less thanone, of the dwelling units shall be Type Adwelling units. All dwelling and sleepingunits on a site shall be considered todetermine the total number of accessibledwelling and sleeping units.

1. Requirements for Type B dwelling andsleeping units shall not apply to dwelling orsleeping units that are both located above the



first level containing dwelling or sleepingunits and that are not provided with elevatoraccess thereto.

2. A multistory dwelling unit * * *3. The required number of Type B dwelling

and sleeping units provided in multiplenonelevator buildings on a single site isallowed to be reduced to a percentage of theground floor dwelling units which is equal tothe percentage of the entire site havinggrades, prior to development, which are lessthan 10 percent, but in no case shall thenumber of Type B dwelling and sleepingunits be less than 20% of the ground floordwelling and sleeping units on the entiresite.

4. The required number of Type A andType B dwelling and sleeping units * * *

1105.4.3 Rooms and spaces available forthe use of residents and which serveaccessible dwelling or sleeping units shall beaccessible. Exception: Group homes intendedto be occupied by a single household anddetached single-family homes occupied by asingle household.

Note: See other changes to Exceptions 2, 3,and 4 under new recommendations 6, 7, 8,and 14 later in this report.


In this recommendation, theDepartment recommended that theExceptions to Section 1105.4 use theterm ‘‘structure’’ instead of ‘‘building.’’This was recommended both forconsistency with the chargingparagraph, and in order to ensure thatthe intent of the code, that, for purposesof accessibility, SBC treats dwellingunits in buildings separated by firewallsas a single structure. Based on thecomments received on thisrecommendation, the Department haswithdrawn its recommendation.


The Fair Housing Act regulationsdefine ‘‘ground floor’’ as a ‘‘floor of abuilding with a building entrance on anaccessible route. A building may haveone or more ground floors.’’ 24 CFR100.202. The Guidelines further state:‘‘Where the first floor containingdwelling units in a building is abovegrade, all units on that floor must beserved by a building entrance on anaccessible route. This floor will beconsidered to be a ground floor.’’ 56 FRat 9500.

If a building is built into a hill, forexample, and the front and the back ofthe building have entrances to dwellingunits at grade, but at differentelevations, the ground floor dwellingunits on both levels are covered underthe Guidelines. See the Questions andAnswers About the Guidelines, questionnumber 6. 59 FR at 33364.

Exception 1, Section 1105.4.2, statesthat the requirements for Type B

dwelling units shall not apply todwelling units that are both locatedabove the first level containing dwellingunits and that are not provided withelevator access thereto. This impliesthat if a building is built into a hill, forexample, and the front and the back ofthe building have entrances at grade butat different elevations, the first levelcontaining dwelling units could beconsidered the level at the lowestelevation. Since a ground floor is a floorof a building with a building entranceon an accessible route and there can bemore than one ground floor, it is clearin the example above that both levels ofthat building built into the hill areconsidered ‘‘ground floors’’ and mustcomply with the Guidelines.

The SBC defines the term ‘‘groundfloor dwelling unit’’ in Chapter 2 as adwelling unit with a primary entranceand habitable space at grade. However,the SBC does not refer to the term in itsprovisions for accessible dwelling units(Section 1105.4.2). The definition of‘‘ground floor dwelling unit’’ does notindicate that there can be more than oneground or grade levels and thereforemore than one level of ground floordwelling units. According to the SBC, inthe example given above, the level at thelowest elevation is the only levelrequired to have accessible dwellingunits. Therefore, the SBC definition of‘‘ground floor dwelling unit’’ does notmeet the requirements of the Act,regulations, and the Guidelines.

In its draft report for public comment,the Department offered arecommendation that the SBC defineground floor to match the regulationsand the Guidelines, and delete thedefinition of ‘‘dwelling unit, groundfloor’’ from Section 1102. As theDepartment stated in the preamble tothis report, it is mindful of the fact thatthe language in the regulations and theGuidelines is not couched in buildingcode terminology. The Department is,therefore, withdrawing thisrecommendation. However, theDepartment maintains that the SBC isinconsistent with the Act, theregulations and the Guidelines withrespect to requiring additional groundfloors to be accessible. In addition,during review of the public comments,two additional concerns arose: (1)Whether or not the SBC’s scopinglanguage, in combination with thedefinition of ‘‘dwelling unit, groundfloor,’’ makes it clear that there must beat least one ground floor, and (2)whether the language at Exception 1 of1105.4.2 results in requiring builders tomake the lowest floor containingdwelling units of a building accessibleeven if it were more practical to make

a different floor (such as the secondfloor) containing dwelling unitsaccessible when that floor is closer tothe grade, even if not ‘‘at grade.’’ TheDepartment will, however, work withthe model code organizations, and anyother interested persons, to developalternative language that will addressthis issue to the Department’ssatisfaction.

In the meantime, the Departmentbelieves that owners, builders,developers, designers, architects andothers involved in the design andconstruction of housing covered by theAct must apply the Department’sdefinition of ‘‘ground floor’’ whenmaking determinations whetherdwelling units or sleeping units in anon-elevator building with four or moresuch units are required to comply withthe Act.



According to the SBC, buildings thatare structurally connected by abreezeway or stairway are consideredtwo separate buildings. However, thereare instances when two buildingsconnected by a stairway that providesthe only means of egress to dwellingunits are considered one building.However, this must be determined on acase-by-case. As a result, the SBC maynot meet the requirements of theGuidelines in terms of covered unitsconnected by breezeways or stairways.


It is recommended that the SBC bemodified to include an additionalprovision under Section 3104, Coveredand Enclosed Walkways and Tunnels,as follows:

3104.2.1. Separate structures. For purposesof calculating the number of Type B dwellingand sleeping units required by Chapter 11,structurally connected buildings andbuildings with multiple wings shall beconsidered one structure.




The regulations determined that amultistory dwelling unit that does nothave an elevator internal to the unit thatis located in a building that does nothave an elevator is not a ‘‘coveredmultifamily dwelling’’ because theentire unit is not on the ground floor. 54FR at 3244. The Guidelines define a‘‘multistory dwelling unit’’ as adwelling unit with finished living spacelocated on one floor and the floor orfloors immediately above or below it. 56FR at 9500. A ‘‘single-story dwellingunit’’ is defined as a dwelling unit withall finished living space located on onefloor. 56 FR at 9501.

The SBC defines ‘‘multistory dwellingunits’’ as a dwelling unit with habitableor bathroom space located on more thanone story. The SBC defines ‘‘habitablespace (room)’’ as a space in structure forliving, sleeping, eating or cooking.Bathrooms, toilet compartments, closets,halls, storage or utility space, andsimilar areas, are not consideredhabitable space.

According to the SBC’s definition of‘‘multistory dwelling unit’’, a unitwould be considered multistory if onelevel contains living or ‘‘habitable’’space and the floor next above or belowcontained only a bathroom. Accordingto the definitions in the Guidelines, atwo-level unit with only a bathroom, oronly a bathroom and storage space onone level, is not a multistory dwellingunit because finished living space mustbe located on both floors. Bathroomspace alone does not constitute livingspace, nor does bathroom and storagespace. The SBC’s definition of‘‘dwelling unit, multistory’’ does notmeet the Department’s interpretation ofthe Act, the regulations and theGuidelines of what constitutes a‘‘multistory dwelling unit.’’


It is recommended that the referenceto ‘‘or bathroom space’’ in the SBC’sdefinition of ‘‘multistory dwelling unit’’be deleted as follows:

Section 1102, Definitions:Dwelling unit, multistory: For application

of the accessibility requirements, this termshall mean a dwelling unit with habitablespace located on more than one story.


The Guidelines specify sevenrequirements relating to accessibilitywhich reflect the language of the Actand the regulations. Compliance withthe provisions of the Guidelines

constitutes a safe harbor for compliancewith the requirements of the Act. TheAct itself references the ANSI A117.1standard as a means for meeting thetechnical requirements of the Act. Asdiscussed in the Department’s policystatement, at the time the Act waspassed and the Guidelines were written,ANSI A117.1–1986 was in effect. Sincethat time, there have been twoadditional editions of ANSI A117.1published, the CABO/ANSI A117.1 in1992 and the ICC/ANSI A117.1 in 1998.

The Department believes thatcompliance with either of these newerversions of the ANSI–A117.1 constitutesan additional safe harbor in terms ofdemonstrating compliance with thetechnical provisions of the Act’saccessibility requirements. It is, ofcourse, still necessary to refer to the Actand the regulations, or the Guidelines,for implementing the scopingrequirements. The Department believesthat Code officials may rely on theedition of ANSI A117.1 that has beenadopted by the code organization orState or local jurisdiction, if it has beenadopted without modifications and isuniformly enforced.

The SBC utilizes the technical criteriacontained in CABO/ANSI A117.1–1992.Therefore, the Department hasdetermined that there is no variancebetween the requirements of the Act andthe model code provision if the modelcode provision is based on CABO/ANSIA117.1–1992, even where those criteriadiffer from the ANSI A117.1–1986criteria or the Guidelines.



Requirement 1 of the Guidelinesincludes specifications for providing anaccessible entrance on an accessibleroute, and explains that therequirements apply to a single buildingon a site and to multiple buildings ona site. 56 FR at 9503. In addition,Requirement 1 includes specificationsfor determining site impracticality basedon terrain and unusual sitecharacteristics. 56 FR at 9503. However,the Guidelines specify that coveredmultifamily dwellings with elevatorsshall be designed and constructed toprovide at least one accessible entranceon an accessible route, regardless of

terrain or unusual characteristics of thesite. 56 FR at 9504.

The SBC’s provision related toRequirement 1 are consistent with theAct, the regulations, and the Guidelines,except as follows:



Individual Building Test—This testmay be used for all sites, but must beused for sites with a single buildinghaving a common entrance for all units.56 FR at 9503.



Step B states that the percentage ofground floor units that must be madeaccessible should be equal to the totalbuildable area of the undisturbed site(not including floodplains, wetlands, orother restricted areas) that has anexisting natural grade of less than 10%slope (previously determined in StepA). 56 FR at 9504.


For example, according to theGuidelines’ site analysis test fordetermining impracticality due toterrain, if 60% of the total area of anundisturbed site has an existing naturalgrade of less than 10% slope, then 60%of the ground floor units are required tobe served by an accessible entrance onan accessible route. If we construct twobuildings not served by elevators on thatsite, each with 20 ground floor units fora total of 40 ground floor dwelling unitson the entire site, then 24 ground floordwelling units (60% of ground floorunits) must have an accessible entrance



on an accessible route. In addition,according to step C of the site analysistest, all ground floor units in thebuilding, or ground floor units served bya particular entrance shall be madeaccessible if the entrance to the units ison an accessible route.

Variances Related to Site AnalysisTest—(Draft Recommendation Number9)

Section 1105.4.2, Exception 3, of theSBC provides that the number of TypeB dwelling units in multiple non-elevator buildings on a single site isallowed to be reduced to a percentage ofthe ground floor units which is equal tothe percentage of the entire site havinggrades, prior to development, which are10% or less; but in no case shall thenumber of Type B units be less than20% of the ground floor dwelling unitson the entire site.

This Exception corresponds to StepsA and B of the site analysis test, exceptthat the Guidelines requires the gradesto be ‘‘less than 10%’’. 56 FR at 9504.In addition, the Exception fails toprovide equivalent language to Step C,i.e., it does not require that, in additionto the percentage of ground floor unitsrequired to be accessible, all groundfloor units in buildings, or ground floorunits served by a particular entrance,must be made accessible if the entranceto the units is on an accessible route. 56FR at 9504. Therefore, the SBC does notmeet this aspect of the Guidelines.

In addition, according to theGuidelines, regardless of siteconsiderations, an accessible entranceserved by an accessible route is practicalwhenever an elevator connects parkingwith a ground floor, in which case allground floor units are covered, orwhenever an elevated walk with a slopeno greater than 10% is planned betweenan entrance and a pedestrian orvehicular arrival point. 56 FR at 9504.The SBC does not include any languagethat reflects these requirements. As aresult, the SBC does not meet theseprovisions of the Guidelines.


In order to address theseinconsistencies, we thereforerecommend the following changes andadditions to Section 1105.4.2, Exception3, of the SBC:

The number of Type B dwelling andsleeping units provided in multiple non-elevator buildings on a single site is allowedto be reduced to a percentage of the groundfloor dwelling and sleeping units which isequal to the percentage of the entire sitehaving grades, prior to development, whichare less than 10%; but in no case shall the

number of Type B dwelling and sleepingunits be less than 20 percent of the groundfloor dwelling and sleeping units on theentire site. In addition to the percentageestablished, all ground floor dwelling andsleeping units in a building, or ground floordwelling and sleeping units served by aparticular entrance shall be Type B if any oneof the following applies:

3.1 The slope between the entrance to thedwelling and sleeping units and a pedestrianor vehicular arrival point is no greater than8.33%; or


3.3 An elevated walkway with a slope notexceeding 10 percent is planned between anentrance and a pedestrian or vehicular arrivalpoint. The slope of the walkway, in suchcases shall be reduced to no greater than8.33%.

Variances Related to Buildings WithElevators—(Draft RecommendationNumber 10)

According to the Guidelines,buildings with elevators must providean accessible entrance on an accessibleroute regardless of site impracticality.56 FR at 9503.

The SBC does not reflect thisrequirement in Section 1105.4.2,Exception 4.


It is recommended that Exception 4,Section 1105.4.2 be modified to exemptbuildings with elevators from siteimpracticality as follows:

The required number of Type A andType B dwelling units and Type Bsleeping units shall not apply to a sitewhere the lowest floor or the loweststructural member of a structure notprovided with elevator service isrequired to be at or above the base floorelevation resulting in * * *.

Variance Related to Sites With UnusualCharacteristics—(DraftRecommendation Number 11)

In addition, the criteria in theGuidelines for determining siteimpracticality for sites having unusualcharacteristics specifies that anaccessible entrance on an accessibleroute is impractical when the unusualsite characteristics result in a differencein finished grade elevation exceeding 30inches AND 10 percent, measuredbetween an entrance and all vehicularor pedestrian arrival points within 50feet of the planned entrance, and ifnone, then between the closestvehicular or pedestrian arrival point. 56FR 9504.

The SBC does not reflect thisrequirement in Section 1105.4.2,Exception 4. The SBC’s correspondingprovision states that the accessibility

requirements shall not apply to a sitewhere the lowest floor or the loweststructural building member is requiredto be at or above the base flood elevationresulting in a difference in elevationbetween the minimum required floorelevation at the primary entrances andvehicular and pedestrian arrival pointswithin 50 feet exceeding 30 inches, ORa slope exceeding 10 percent betweenthe minimum required floor elevation atthe primary entrances and vehicular andpedestrian arrival points within 50 feet.The Guidelines specify that thedifference in finished grade elevationmust be both 30 inches and 10 percent.


It is further recommended thatSection 1105.4.2, Exception 4, bemodified to read:

1. A difference in elevation betweenthe minimum required floor elevation atthe primary entrances and vehicular andpedestrian arrival points within 50 feet(15 240 mm) exceeding 30 inches (762mm), AND * * *.


The Act and the regulations providethat covered multifamily dwellings witha building entrance on an accessibleroute be designed and constructed in amanner so that the public and commonuse areas are readily accessible to andusable by people with disabilities. 42U.S.C. 3604 (f)(3)(c)(i); 24 CFR100.205(c)(1). The Guidelines’Requirement 2 cites the appropriatesection of the ANSI A117.1–1986Standard for the technical provisions for15 accessible elements or spaces, anddescribes the application of thespecifications including modificationsto the referenced Standard. 56 FR at9505. Following are the 15 basicelements or spaces for accessible andusable public and common use areas orfacilities:Accessible routesProtruding objectsGround and floor surface treatmentsParking and passenger loading zonesCurb rampsRampsStairsElevatorsPlatform liftsDrinking fountains and water coolersToilet rooms and bathing facilitiesSeating, tables, or work surfacesPlaces of assemblyCommon-use spaces and facilitiesLaundry rooms5656 FR at 9505

When a variance is identified in theSBC that does not meet or exceed the



requirements of the Guidelines for eachof the 15 elements or spaces above, theyare noted below.

Accessible Route(s)



The Exception in SBC Section1105.4.4 contains language which iscomparable to the Guidelines with twoomissions. That section states:

If the slope of the finished gradebetween accessible facilities andbuildings exceeds 1:12, or wherephysical barriers prevent the installationof an accessible route, a vehicular routewith parking at each accessible facilityor building is permitted in place of theaccessible route.

The SBC does not include languagemaking it clear that accessible parkingand curb ramps must be available at theaccessible facility if access if providedby a vehicular route.


It is recommended that SBC, Section1105.4.4, Exception, be modified toinclude the following language:

If the slope of the finished ground levelbetween accessible facilities and buildingsexceeds one unit vertical in 12 unitshorizontal, or where physical barriersprevent the installation of an accessibleroute, a vehicular route with accessibleparking , in accordance with 1104, at eachpublic or common use facility or building ispermitted in place of the accessible route.


Based on the public commentsreceived, the Department hasdetermined that the SBC adequatelyaddresses this issue.


The Guidelines require thataccessibility be provided on stairslocated along accessible routesconnecting levels not connected by anelevator. 56 FR at 9505. For example, a

ground floor entry might have steps upto a bank of mailboxes, with a ramplocated beside the steps. The stairs inthis case are required to meet the ANSIA117.1 specification, since they will beused by people with disabilities forwhom stairs are more usable thanramps. However, stairs are not acomponent of an accessible route.

Since stairs are not parts of accessibleroutes and they are not specificallyreferenced in Chapter 11, Accessibility,of the SBC, one must refer to Chapter10, Means of Egress, for stair provisions.However, the Chapter 10 requirementsdo not necessarily apply to stairs thatconnect levels not connected by anelevator if they are not a part of a meansof egress. There are variances betweenthe SBC and the Guidelines’requirements for stairs along accessibleroutes regarding handrail extensionsand projections, for example.


It is recommended that the SBCinclude a provision for stairways underSection 1106, other Features andFacilities as follows:

Stairways.Stairways located along accessible routes

connecting floor levels that are not connectedby an elevator shall be designed andconstructed to comply with CABO/ANSIA117.1–1992.

Elevators—(Draft RecommendationNumber 15)

The Guidelines require that elevatorson accessible routes be accessibleaccording to the technical specificationsof ANSI A117.1–1986, Section 4.10,Elevators. 56 FR at 9505. This applies toelevators located within multistorydwellings. SBC section 1106.3,Elevators, Lifts, states that all passengerelevators on an accessible route shall beaccessible. However, the SBC providesan exception to Section 1106.3 whichstates that elevators within a dwellingunit are not required to be accessible.This does not meet the requirements ofthe Guidelines because elevators withinmultistory units must provideaccessibility.

Recommendation Number 11: (DraftRecommendation Number 15)

It is recommended that this exceptionbe deleted.

Parking and Passenger LoadinG Zones—(Draft Recommendation Numbers 16and 17)

The Questions and Answers Aboutthe Guidelines (Question and Answer14c) state that where there are severalindividual parking garages grouped

together either in a separate area of thebuilding (such as at one end of thebuilding, or in a detached building), forassignment or rental to residents, atleast 2% of the garages must be at least14′2″ wide and have a vehicular door atleast 10′ wide. 59 FR at 33366. Thisrequirement assumes that garageparking is the only type of parkingprovided at the site.

Question and Answer 14c providesthe minimum requirement for the widthof accessible garages and garage doors.The minimum widths provide enoughspace for an automobile to enter thegarage, and for a passenger or driverusing a wheelchair to exit through thegarage door without interference by theautomobile. However, the minimumrequirements do not preclude a garagedesign that provides equivalent orgreater accessibility. For example, adesigner may choose to design a garagewith a door that is 8 feet wide, butprovides a separate accessible exit doorthrough which the driver or thepassenger may exit, provided that itconnects to the accessible route to theentrance of the unit.

The SBC does not provide minimumrequirements for these garages, andtherefore, does not meet this provisionof the Guidelines.

The Guidelines provide that ifprovided at the site, there be accessiblevisitor parking sufficient to provideaccess to grade-level entrances ofcovered multifamily dwellings, andaccessible parking at facilities. TheGuidelines also require accessibleparking on the same terms and with thefull range of choices (e.g., surfaceparking or garage) that are provided toother residents of the project. 56 FR at9505.

In addition, the Questions andAnswers About the Guidelines providefurther clarification of the parkingrequirements at Q&A 14(b) whichclarified that when more than one typeof parking is provided, at least onespace for each type of parking should bemade accessible even if this numberexceeds two percent.

The Department does not recommendthat the SBC revise any of its broaderscoping requirements for parking.However, the SBC does not includecomparable language in Section 1104,Parking Facilities, with respect to theabove variances. Therefore, the SBCdoes not meet the provisions of theGuidelines with respect to these issues.

Recommendation Number 12 (DraftRecommendation Number 16):

In order to address theseinconsistencies, it is recommended that



the SBC add the following language toSection 1104.1:

Two percent of parking spaces provided forR2 and R3 occupancies required to haveaccessible/adaptable dwelling or sleepingunits shall be accessible * * *

At least 2% of parking garages provided forR2 and R3 occupancies required to haveaccessible dwelling or sleeping units wherethere are several individual garages groupedtogether, either in a separate area of astructure or in a detached structure, forassignment or rental to residents, must be atleast 14′2″ wide and have a vehicular doorat least 10′ wide * * *

Where accessible parking spaces areprovided, at least one of each type (surfaceparking, carports, or garage) shall beprovided.

* * * Where visitor parking is provided, atleast one accessible visitor parking spaceshall be provided.

* * * Where parking is provided at publicand common use facilities that serveaccessible buildings, at least one accessibleparking space shall be provided.

In order to ensure that passengerloading zones comply with therequirements of the Guidelines, it isrecommended that SBC add a provisionunder Section 1104 which states thefollowing:

When provided, passenger loading zonesshall be located on an accessible route.Passenger loading zones shall be designedand constructed in accordance with CABO/ANSI A117.1–1992.

Table 1104.3, Accessible ParkingSpaces includes a note that states ‘‘theaccessible space shall be provided butneed not be designated as reserved forthe physically disabled.’’ In addition,Section 1107, Signs, indicates thatelements shall be identified by theInternational Symbol of Accessibility atfour locations, the first of which statesthat it is required at accessible parkingspaces required by 1104.1 (ParkingFacilities) but not where the totalparking spaces provided are five or less.This does not meet the requirements ofthe Guidelines that requires signage atall accessible parking space.


It is recommended that this languagefrom provision 1 under Section 1107.1,Signs, be deleted.

Recreational Facilities

The Guidelines, in Requirement 2,state that: ‘‘If provided in the facility orat the site; (a) where multiplerecreational facilities (e.g., tennis courts)are provided sufficient accessiblefacilities of each type to assure equitableopportunity for use by persons withhandicaps’’ shall be provided. Thesefacilities must be connected by an

accessible route to the covered dwellingunits or a vehicular route if anaccessible route is not possible. TheSBC Section 1105.4.5 requires 25%, butnot less than one, of recreationalfacilities of each type in each occupancygroup to be accessible.

The Department concludes that theGuidelines may be interpreted to bestricter than the requirements of themodel codes with respect to therequirement for accessible recreationalfacilities because an interpretation of‘‘sufficient to provide equitableopportunity for use’’ may result indeterminations that recreationalfacilities that serve different buildingscontaining accessible dwelling unitsmust be accessible, even if this meansmaking all of the same type ofrecreational facility accessible (such astwo swimming pools on a large site,each which serves different buildings onthe site).



Requirement 3: Usable DoorsThe Act and regulations require that

all doors designed to allow passage intoand within a covered dwelling unit besufficiently wide to allow passage bypersons in wheelchairs. 42 U.S.C. 3604(f)(3)(C)(ii); 24 CFR 100.205(c)(2). TheGuidelines set forth criteria to meet thisrequirement. The Guidelines also setforth additional guidance regardingdoors that are a part of an accessibleroute in the public and common useareas of multifamily dwellings and todoors into and within individualdwelling units. 56 FR at 9506.



Within individual dwelling units,doors intended for user passage throughthe unit which have a clear opening of

at least 32 inches nominal width whenthe door is open 90 degrees, measuredbetween the face of the door and thestop, would meet the Act’s requirement.56 FR at 9506.

The Department has determined thatthe SBC meets the requirements of theAct, the regulations, and the Guidelineswith respect to usable doors.


The Act and regulations require thatall covered multifamily dwellings witha building entrance on an accessibleroute shall be designed and constructedin such a manner that all premiseswithin covered multifamily dwellingunits contain an accessible route intoand through the covered dwelling unit.42 U.S.C. 3604(f)(3)(C)(iii)(I), 24 CFR100.205 (c)(3)(i). Requirement 4 of theGuidelines sets forth criteria to meetthis requirement 56 FR at 9509–10. TheSBC meets the provisions of the Act,regulations, and Guidelines with respectto Requirement 4, except the following.


Among the criteria for Requirement 4is the provision that in multistorydwelling units in buildings withelevators, the story of the unit that isserved by the building elevator is theprimary entry to the unit. 56 FR at 9507.

The SBC provides the followingexceptions to the requirement for TypeB units as follows (Section 1105.4.2):

A multistory dwelling unit which is notprovided with elevator service is not requiredto comply with requirements for Type Bdwelling units. Where a multistory dwellingunit is provided with elevator service to onlyone floor, the floor provided with theelevator service shall comply with therequirements for a Type B dwelling unit anda toilet facility shall be provided.

The SBC does not mention that where amultistory dwelling unit is provided withelevator service, the story served by theelevator must be the primary entry to theunit. As a result, the SBC does not meet therequirements of the Guidelines in terms ofthe exceptions for multistory units inbuildings served by elevators.


It is recommended that the SBCmodify Section 1105.4.2, Exception 2 asfollows:

A multistory dwelling unit which is notprovided with elevator service is not requiredto comply with the requirements for Type Bdwelling units. Where a multistory dwellingunit is provided with elevator service to onlyone floor, the floor provided with elevatorservice shall be the primary entry to the unit,shall comply with the requirements for a



Type B dwelling unit, and a toilet facilityshall be provided.

Requirement 5: Light Switches,Electrical Outlets, Thermostats andOther Environmental Controls inAccessible Locations

The Act and regulations require thatall covered multifamily dwellings witha building entrance on an accessibleroute shall be designed and constructedso that all premises within the coveredunits contain light switches, electricaloutlets, thermostats, and otherenvironmental controls in accessiblelocations. 42 U.S.C. 3604(f)(3)(C)(iii)(II);24 CFR 100.205. Requirement 5 of theGuidelines sets forth criteria to meetthese requirements. The SBC meets theprovisions of the Act, regulations, andGuidelines with respect to Requirement5.

Requirement 6: Reinforced Walls forGrab Bars—(Draft RecommendationNumber 19)

Requirement 6 of the Guidelines setsforth technical specifications to meetthe requirements of the Act at 42 U.S.C.§ 3604 (f)(3)(C)(iii)(III) and theregulations at 24 CFR 100.205(c)(3)(iii),which specifies that all coveredmultifamily dwellings with a buildingentrance on an accessible route shall bedesigned and constructed so that allpremises within the covered unitscontain reinforcements in bathroomwalls to allow later installation of grabbars around toilet, tub, shower stall andshower seat, where such facilities areprovided. 56 FR at 9509–10.

The SBC Section 1110.9.3, Grab barand seat reinforcement, states thatwhere walls are located so as to permitinstallation of grab bars and seatscomplying with Section 4.17.4, 4.21.4,4.22.4, 4.23.3, of CABO/ANSI A117.1–1992, reinforcement shall be providedfor the installation of grab bars and seatsmeeting those requirements. The SBCdoes not include any provisions for theinstallation of grab bars for fixtures,sunken or raised tubs for example, thatare located away from walls, which doesnot meet the requirements of theGuidelines.


It is recommended that the SBCmodify Section 1110.9.4, Toilet andbathing fixtures, as follows:

Section 1110.9.4 Toilet and bathingfixtures:

Toilet and bathing fixtures shall complywith either Section 1110.9.4.1 Option A or1110.9.4.2 Option B. Where fixtures arelocated away from walls alternativereinforcement complying with CABO/ANSI

A117.1 4.24.2.5 and 4.24.3 shall be providedfor the mounting of grab bars.



The Act and regulations provide thatall covered multifamily dwellings witha building entrance on an accessibleroute shall be designed to have usablekitchens and bathrooms such that anindividual in a wheelchair canmaneuver about the space. 42 U.S.C.3604 (f)(3)(C)(iii)(IV); 24 CFR 100.205.Requirement 7 of the Guidelines setsforth technical criteria to meet thoserequirements. 56 FR at 9511–15.

The Guidelines address a parallelapproach to kitchen sinks inRequirement 7. The parallel approach tothe sink is addressed in Figure 7(c). 56FR at 9511. The ANSI A117.1–1986standard requires, with respect to sinksand lavatories, a forward approach withclear floor space below, and illustratesthe forward approach centered on thesink/lavatory. (ANSI A117.1–1986, Fig.32 on page 50.) The Department’sGuidelines allowed a departure from theANSI standard. The Guidelines permitthe clear floor space to be designed fora parallel position. 56 FR at 9511–12.While the Guidelines only show theclear floor space centered on thelavatory [Fig. 7 (c)], it is equallyapplicable to the sink.

SBC, Section 1110.8.2.2, states thatthe clear floor space at the sink shall bepositioned for a parallel approach. Theoffset of the centerline of the clear floorspace and sink is required to be 9 incheswhich does not meet the requirementsof the Guidelines. The Guidelinesrequire the centering of the parallelapproach on the sink.


It is recommended that the SBC deletethe 9-inch offset requirement andmodify, Section 1110.8.2.2, Clear floorspace, as follows:

Section 1110.8.2.2 Clear floor space:The clear floor space at the sink

positioned for a parallel approach shallbe centered on the sink.

Usable Bathrooms—(DraftRecommendation Numbers 21 and 22):

The Guidelines provide two optionsfor designing accessible bathrooms. 56FR at 9511. The first option requires aminimal level of accessibility. Thisoption requires that walls be reinforcedfor grab bars and sufficient maneuveringspace be provided within the bathroomfor a person using a wheelchair or othermobility aid to enter, close the door, use

the fixtures, reopen the doors and exit.56 FR at 9511. The second option fordesigning accessible bathroomsprovides a greater level of accessibilitythan that provided by the first option.

The second option for designingaccessible bathrooms requires that theyhave reinforced walls for grab bars, clearspace at specific locations within thebathroom to permit use of the fixtures,and specific clearances for fixtures. 56FR at 9511.

According to the Guidelines, forcovered multifamily dwelling units inelevator buildings, only bathrooms onthe accessible level are subject to therequirements. If a powder room is theonly facility provided on the accessiblelevel of a multistory dwelling unit; itmust comply with the first or secondoption for designing accessiblebathrooms and have reinforcement forgrab bars.

As discussed in reference to kitchensabove, the Guidelines require thecentering of the parallel approach on thelavatory. 56 FR at 9512. The SBC clearfloor space requirements for lavatoriesunder Option A, Section 1110.9.4.1.1,does not require centering of the clearfloor space on the lavatory which doesnot meet the requirements of theGuidelines.


It is recommended that Section1110.9.4.1.1 be modified as follows:

Section 1110.9.4.1.1 Lavatory:A 30 inch by 48 inch minimum clear floor

space positioned for a parallel approach shallbe provided and centered on the lavatory.

Section 1110.9.4.2.1, Lavatory, underOption B provisions requires a 9-inchmaximum offset of the centerline of theclear floor space and lavatory that doesnot meet the requirements of theGuidelines.

Recommendation No. 18 (DraftRecommendation Number 22)

It is recommended that Section1119.9.4.2.1, Lavatory, be modified asfollows:

Section 1110.4.2.1 Lavatory:A 30 inch by 48 inch minimum clear floor

space positioned for parallel approach shallbe centered on the lavatory.

Chapter 6: BOCA National BuildingCode Analysis

I. Purpose

The purpose of this report is toidentify provisions of the 1996 editionof the National Building Code (hereinreferred to as BNBC), published by theBuilding Officials & CodeAdministrators International (BOCA)



that do not meet the requirements of theFair Housing Act (the Act), theregulations implementing the 1988Amendments to the Act (theregulations), or the Fair HousingAccessibility Guidelines (theGuidelines). Where variances areidentified, the Department recommendshow they may be revised to meet therequirements of the Act, the regulations,or the Guidelines. The 1999 edition ofthe BNBC was published in January,1999. A review of the 1999 edition ofBNBC is not part of the scope of thefollowing analysis.

II. MethodologyThe analysis of the BNBC by the

Department and its contractor, StevenWinter Associates, Inc., consisted of thefollowing:—A review of the language of the Act,

42 U.S.C. § 3604 (f)(3)(C), theregulations at 24 CFR 100.201 and205, the Fair Housing AccessibilityGuidelines, 56 FR at 9472–9515, andthe June 28, 1994 Supplement toNotice of Fair Housing AccessibilityGuidelines: Questions and AnswersAbout the Guidelines,’’ 59 FR at33362–33368 (the Questions andAnswers About the Guidelines).

—A review of the December 15, 1997copyrighted comparative matrixdeveloped by the International CodeCouncil (ICC), BOCA, InternationalConference of Building Officials(ICBO), Southern Building CodeCongress International (SBCCI), andthe Council of American BuildingOfficials (CABO). The matrix, whichwas included with HUD’s Request forQuotations for this analysis consistsof a side-by-side comparison of theGuidelines with the correspondingaccessibility provisions of the modelbuilding codes. The analysis of BNBCbegan by a review of the column ofthe matrix that includes BNBC’saccessibility requirements andcomparing them with the column thatincludes the provisions of theGuidelines. The matrix review wasconducted to identify apparentvariances between BNBC’saccessibility requirements and thoseof the Act, regulations, andGuidelines.

—A review of the accessibilityprovisions of the 1996 edition ofBNBC; and a review of applicablereferenced codes and standards,including: American NationalStandards Institute (ANSI) A117.1–1986, which is referenced in theregulations, and CABO/ANSI A117.1–1992, and the International PlumbingCode—1995, which are referenced byBNBC. Because the matrix did not

include full text of the technicalprovisions, it was necessary to usethese standards as companiondocuments in assessing the matrix,the Guidelines, and BNBC. They werereviewed to identify any variancesfrom the Act, regulations, orGuidelines in the technical provisionsrequired by each.

—Interviews with Kim Paarlberg, BOCAStaff Architect and the liaison to theIBC Means of Egress/AccessibilityCommittee, to gain insight into howthe BOCA responds to variancesidentified by SWA. SWA found itnecessary to understand BOCA’sinterpretations of its ownrequirements that may not beapparent when reviewing code text.The original analysis of the BNBC was

submitted to the Department by SWA onAugust 5, 1999. The Department formeda Model Code Working Group consistingof representatives from the Office of FairHousing and Equal Opportunity, theOffice of General Counsel; and theOffice of Housing. A representative ofthe U.S. Department of Justice alsoparticipated in the Working Group. TheWorking Group met with SWA onSeptember 8, 1999, and asked questionsand made comments and suggestionsabout the analysis. This meeting led tofurther conversations between SWA andKim Paarlberg, and conversationsbetween HUD staff and BOCA staff.

The draft report was published forpublic comment on October 26, 1999,and a public meeting on the draftreports was held on November 10, 1999.Written comments on the report werereceived. All comments were reviewedand considered. This final reportincorporates many of those commentsand has been revised from the draftreport.

III. The BOCA National Building CodeThe Building Officials & Code

Administrators International (BOCA),Inc., is a nonprofit organization thatadministers the BNBC series of modelregulatory construction codes. The codeprovides minimum standards for publicsafety, health and welfare as they areaffected by building construction.Compliance with the BOCA modelbuilding code is not required unlessadopted by reference by a jurisdiction’sboard, council, or other authoritativegoverning body.

The 1996 BNBC, Thirteenth Edition,published January 1, 1996, includesprovisions for accessibility intended toreflect the intent of the Act. Previouseditions of the code include provisionsfor accessibility, but not as required bythe Act. The 1996 BNBC, Chapter 11,Accessibility, is the first attempt at

codifying the accessibility provisions ofthe Act. Any jurisdiction that adopts the1996 BNBC must follow theseaccessibility provisions.

Unlike the Fair Housing Act, BNBC isa model building code and not a law. Itprovides minimum standards for publicsafety, health and welfare as they areaffected by building construction.Compliance with BNBC is not requiredunless adopted by reference by ajurisdiction’s board, council, or otherauthoritative governing body.Jurisdictions may adopt a modelbuilding code in its entirety or withmodifications; hence, the building codesare referred to as ‘‘model codes.’’

In the past, some model buildingcodes have required that a certainpercentage or number of dwelling unitsin defined residential uses meet thestandards for full accessibility asdefined by ANSI A117. These dwellingunits are referred to in BNBC, 1107.4.2,and defined in Section 1102, as a ‘‘TypeA dwelling unit.’’ Section 1107.4.2 ofthe code, adopts standards for a ‘‘TypeB dwelling unit.’’ A ‘‘Type B dwellingunit’’ is defined in Section 1102 as adwelling unit that is designed andconstructed to provide a minimal levelof accessibility in accordance with theapplicable provisions of Chapter 11 andCABO/ANSI A117.1 listed in Chapter35. The purpose of the Type B dwellingunit is to incorporate the requirementsof the design and constructionrequirements of the Act, the regulations,and the Guidelines. BOCA adoptsCABO/ANSI A117.1–1992 and refers tothe International Plumbing Code (IPC)for the technical provisions for toiletingand bathing facilities, kitchens, andbathrooms. It is important to note,however, that neither CABO/ANSI–A117.1–1992 nor the IPC containscoping provisions, as discussed below.

It is the Department’s understandingthat BOCA will no longer publishsubsequent updates to the latest versionof the BNBC. The four model codeorganizations have joined with the ICCto produce one international buildingcode under the ICC, the first of whichwill be published as the InternationalBuilding Code 2000 early in the year2000.


components that are relevant to thisanalysis. One component describes thetechnical standards that should beapplied during the design andconstruction or alteration of a buildingor structure or elements within astructure. The other component is adescription of the types of buildings orstructures or elements within a structure



to which the technical standards areapplied. The provisions in this secondcomponent are referred to as ‘‘scoping’’provisions. This section of the analysissets forth areas where the scopingprovisions of the BNBC do not includeall of the dwelling units, buildings, oruses that are covered by the Act, theregulations, or the Guidelines. Thisanalysis of the scoping provisions ofBNBC included an examination of thefollowing:

BNBC’s definition of dwelling unit,building, structure, and ground floordwelling unit;

BNBC’s classification of residentialbuildings according to use andoccupancy; and

BNBC’s scoping of dwelling units towhich the accessibility provisionsapply.

This analysis concludes that BNBCcovers most of the same dwelling units,buildings and residential uses as theAct, regulations, and Guidelines. Forexample, the Department concludedthat, in buildings with four or moredwelling units, apartments, custom-designed condominiums, multistoryunits with internal elevators, singlestory townhouses, modular units arecovered, and additions of four or moreunits to existing buildings, are includedwithin BNBC’s scoping requirements forType B dwelling units. However, theDepartment has concluded that thefollowing provisions of BNBC do not ormay not include ‘‘covered multifamilydwellings’’ as they are defined in theAct, regulations, or Guidelines.

BNBC Classification of Residential UseGroups

BNBC stipulates that all structures inwhich sleeping accommodations areprovided, excluding those that areclassified as institutional occupancies,shall be classified as Use Group R–1, R–2, R–3, or R–4 and defined as follows(Section 310.0):—Use Group R–1 structures include

hotels, motels, boarding houses andsimilar buildings arranged for shelterand sleeping accommodations formore than five occupants who areprimarily transient in nature,occupying the facilities for a period ofless than 30 days.

—Use Group R–2 structures include allmultiple-family dwellings havingmore than two dwelling units, exceptas provided for under Use Group R–3 structures, and shall also include allboarding houses and similar buildingsarranged for shelter and sleepingaccommodations in which theoccupants are primarily not transientin nature.

—Use Group R–3 structures include allbuildings arranged for occupancy asone-or two-family dwelling units,including not more than five lodgersor boarders per family and multiplesingle-family dwellings where eachunit has an independent means ofegress and is separated by a 2-hourfire separation assembly.

—Use Group R–4 structures include alldetached one-and two-familydwellings not more than three storiesin height, and the accessory structuresas indicated in the one-and two-family dwelling code.The reference to ‘‘detached one-and

two-family dwellings’’ under Use GroupR–4 refers to structures that arephysically detached. According toBNBC, buildings separated by firewallsare not considered separate structures(see the discussion about BNBC’sdefinition of ‘‘building’’ and ‘‘structure’’below).

Definition of ‘‘Dwelling Unit’’—(DraftRecommendation Number 1 and 2)

The regulations define the term‘‘dwelling unit’’ as: ‘‘a single unit ofresidence for a family of one or morepersons. Examples of dwelling unitsinclude: a single family home; anapartment unit within an apartmentbuilding; and in other types ofdwellings in which sleepingaccommodations are provided buttoileting or cooking facilities are sharedby occupants of more than one room orportion of the dwelling, rooms in whichpeople sleep. Examples of the latterinclude dormitory rooms and sleepingaccommodations in shelters intendedfor occupancy as a residence forhomeless persons.’’24 CFR.100.201.

It is clear from the discussion in thePreamble to the regulations, found at 54FR 3244 (Jan. 23, 1989), that theDepartment intended that each sleepingroom intended for occupancy by aseparate household in a building withshared toileting or kitchen facilitieswould be considered a separatedwelling unit, and that buildings withfour or more of these sleepingaccommodations are ‘‘coveredmultifamily dwelling units’’ forpurposes of the Act.

Of course, a detached building thathas four or more sleeping rooms withshared toileting or kitchen facilities andthat is intended for occupancy by onehousehold is not considered to be a‘‘covered multifamily dwelling’’ underthe Act. For example, a detached singlefamily house with four bedroomsoccupied by four or more personsrelated by birth or marriage is not a

covered multifamily dwelling. Inaddition, a single family house occupiedby four or more unrelated persons thatfunctions as one distinct household,such as what is commonly referred to asa ‘‘group home’’ would not beconsidered to be a ‘‘covered multifamilydwelling’’ for purposes of theapplication of the design andconstruction requirements of the Act.This latter example is consistent withcase precedent and the position of theDepartment and the Department ofJustice with respect to the application ofzoning and land use restrictions tosingle family group homes.

BNBC defines the term ‘‘dwellingunit’’ in Section 310.2, Definitions, asfollows:

A single unit providing complete,independent living facilities for one ormore persons, including permanentprovisions for living, sleeping, eating,cooking and sanitation.

In general, BNBC (1107.4.2) appliesthe accessibility requirements in a TypeB dwelling unit to occupancies in GroupR–2 containing four or more dwellingunits and in occupancies in Group R–3 where there are four or more dwellingunits in a single structure. According toBOCA representatives, there is nocircumstance in which BNBC includes aseparate sleeping room as a ‘‘dwellingunit.’’

Because sleeping accommodations forseparate households in a structure arenot covered under BNBC’s definition of‘‘dwelling unit,’’ BNBC’s scopingprovisions do not meet the requirementsof the Act, the regulations, or theGuidelines because they do not includeall of the dwelling units or residentialstructures that are covered under theAct, the regulations and Guidelines.

In its draft report, SWA recommendedthat the definition of dwelling unit bemodified in the BNBC. Based on publiccomments received on the SWA draftreport on the BNBC, the Department iswithdrawing this recommendation.Instead, SWA recommends that theBNBC adopt a new definition of‘‘sleeping unit’’ as stated below, and addthat language as appropriate to thescoping provisions of Chapter 11, asreflected in subsequentrecommendations.

Recommendation Number 1 (DraftRecommendation Number 1 and 2)

It is recommended that BNBC berevised to add a definition to 310.2 asfollows:

Sleeping unit: A room in which peoplesleep intended to be occupied as a residence.



BNBC does not require that commonuse spaces that serve accessible sleepingunits must be accessible.

Recommendation Number 2 (NewRecommendation)

It is recommended that BNBC add thefollowing provision to 1107.4:

Rooms and spaces available for the use ofthe residents of accessible sleeping unitsshall be accessible. Accessible spaces shallinclude toilet and bathing rooms, kitchen,living and dining areas and any exteriorspaces, including patios, terraces andbalconies.


In Draft Recommendation 3, SWAproposed that the BNBC be revised tomake clear that certain types of housingthat the BNBC viewed as transient aredwellings subject to the requirements ofthe Act, including the design andconstruction requirements. This housingmay include timeshares, residentialhotels and motels, boarding houses,dormitories, and homeless shelters. TheBNBC uses a 30-day measure as themeans to determine whether a buildingis for transient use and thus not adwelling subject to the Act or Chapter11.

A 30-day measure is inappropriate indetermining whether a building iscovered by the Act. The BNBC’s 30-daytest of transience is inappropriatebecause it misleads designers, buildersand other readers of the code that suchhousing need not meet the requirementsof the Act. Length of stay is only onefactor in determining whether abuilding is a ‘‘covered multifamilydwelling.’’ Other factors to beconsidered include: (1) whether therental rate for the unit will be calculatedbased on a daily, weekly, monthly oryearly basis; (2) whether the terms andlength of occupancy will be establishedthrough a lease or other writtenagreement; (3) what amenities will beincluded inside the unit, includingkitchen facilities; (4) how the purpose ofthe property is marketed to the public;(5) whether the resident possesses theright to return to the property; and (6)whether the resident has anywhere elseto which to return.

Accordingly, because the above-described types of housing which aresubject to the Act are not required tomeet BNBC’s Chapter 11 requirements,the BNBC is not consistent with the Act,its regulations and Guidelines. At thistime, the Department is uncertain howbest to resolve this inconsistencybetween the BNBC and theDepartment’s regulations. Accordingly,the Department is withdrawing Draft

Recommendation 3. The Departmentwill continue to work with BOCA andother interested code organizations todevelop language that appropriatelyconveys to builders and designers thatcertain residencies of less than 30 daysmust meet the Act’s accessibilityrequirements. In the meantime, theDepartment believes the factors listedabove must be considered by owners,builders, and architects in determiningwhether the requirements of the Actapply to the design and construction ofbuildings with rooms for short termoccupancy.


The Act defines a ‘‘dwelling’’ as ‘‘anybuilding, structure, or portion thereofwhich is occupied as, or designed orintended for occupancy as, a residenceby one or more families.’’ 42 U.S.C.3602(b). Such a building may servemore than one purpose. Some buildings,known as continuing care facilities,residential care facilities, or assistedliving facilities, serve both as aresidence for their occupants and as aplace where the occupants receivepersonal, medical or other supportservices.

The Questions and Answers Aboutthe Guidelines addressed the issue ofwhether the design and constructionrequirements of the Act apply tocontinuing care facilities whichincorporate housing, health care andother types of services. That publicationstates in part:

The new construction requirements ofthe Fair Housing Act would apply tocontinuing care facilities if the facilityincludes at least one building with fouror more dwelling units. Whether afacility is a ‘‘dwelling’’ under the Actdepends on whether the facility is to beused as a residence for more than a briefperiod of time. As a result, the operationof each continuing care facility must beexamined on a case-by-case basis todetermine whether it containsdwellings.59 FR at 33364.

According to BNBC, continuing carefacilities may fall under Use Group I ifthey have more than five occupants. Asa result, they may not be covered underSection 1107.4.2, Accessible dwellingunit, of the BNBC.

Section 308.2, Use Group I–1, isdefined by BNBC as follows:

This use group shall includebuildings and structures which housesix or more individuals who, because ofage, mental disability or other reasons,must live in a supervised environmentbut who are physically capable ofresponding to an emergency situation

without personal assistance. Whereaccommodating persons of the abovedescription, the following types offacilities shall be classified as I–1facilities: board and care facilities, half-way houses, group homes, socialrehabilitation facilities, alcohol anddrug centers and convalescent facilities.A facility such as the above with five orless occupants shall be classified as aresidential use group.

Section 308.3, Use Group I–2, isdefined by BNBC as follows:

This use group shall includebuildings and structures used formedical, surgical, psychiatric, nursingor custodial care on a 24-hour basis ofsix or more persons who are not capableof self-preservation. Whereaccommodating persons of the abovedescription, the following types offacilities shall be classified as I–2facilities: hospitals, nursing homes (bothintermediate care facilities and skillednursing facilities), mental hospitals anddetoxification facilities. A facility suchas the above with five or less occupantsshall be classified as a residential usegroup.


To ensure that the BNBC covers thesame dwelling and sleeping unitsrequired to provide accessibilityaccording to the Act, the regulations,and the Guidelines, it is recommendedthat the definition of ‘‘sleeping unit’’contained in Recommendation Number1 be adopted and that BNBC be revisedas follows:

Modify Sections 1107.3.1, 1107.3.2,1107.4.1.1 AND 1107.4.2 as follows:

1107.3.1 Use Group I–1: Inoccupancies in Use Group I–1, at least4 percent, but not less than one, of theresident sleeping rooms and theirbathing and toilet facilities shall beaccessible. In addition, board and carefacilities, group homes, andconvalescent facilities of Group I–1occupancies with four or more sleepingunits shall comply with therequirements for Type B sleeping unitsas required by 1107.4.2 with the sameexceptions as provided for in Section1107.4.2.

1107.3.2 Use Group I–2: In nursinghomes of Use Group I–2, at least 50percent, but not less than one, of thepatient sleeping rooms and their bathingand toilet facilities shall be accessible.In addition, in nursing homes of GroupI–2 in structures with four or moresleeping units, all sleeping units shallcomply with the requirements for TypeB sleeping units required by 1107.4.2with the same exceptions as providedfor in Section 1107.4.2.



1107.4.1 Accessible guestrooms: Inoccupancies in Use Group R–1containing six or more guestrooms, notless than one accessible guestroom forthe first 30 guestrooms shall beprovided, and one additional accessibleguestroom for each additional 100guestrooms or fraction thereof shall beprovided. In hotels with more than 50guestrooms, roll-in type showers shallbe provided in one-half, but not lessthan one, of the required accessibleguestrooms. In addition, in occupanciesin Use Group R–1 sleeping units instructures with four or more sleepingunits, sleeping units shall comply withthe requirements for Type B sleepingunits as required by 1107.4.2 with thesame exceptions as provided for inSection 1107.4.2.

1107.4.1.1 Boarding houses: Lodginghouses and congregate residences withmultiple bedrooms or spaces for morethan six occupants shall be providedwith the minimum number of accessibleguestrooms as required by Section1107.4.1. The guestrooms shall beaccessible in accordance with CABOA117.1 listed in Chapter 35. In addition,lodging houses and congregateresidences with four or more sleepingunits for more than six occupants shallcomply with the requirements for TypeB sleeping units as required by 1107.4.2with the same exceptions as providedfor in Section 1107.4.2.

1107.4.2 Accessible dwelling andsleeping units: In occupancies in UseGroup R–2 containing four or moredwelling or sleeping units and inoccupancies in Use Group R–3 wherethere are four or more dwelling orsleeping units in a single structure, alldwelling and sleeping units shall beType B. In occupancies in Use Group R–2 containing more than 20 dwellingunits, at least 2 percent, but not lessthan one, of the dwelling units shall beType A dwelling units in accordancewith CABO A117.1 listed in Chapter 35.In occupancies in Use Group R–2 andR–3, all rooms and spaces available tothe general public and all such spacesavailable for the use of the residentsserving accessible dwelling and sleepingunits shall be accessible.

Exceptions:1. In buildings without elevators,

multistory dwelling units are notrequired to comply with therequirements for Type B dwelling units.

2. The requirement for Type Bdwelling and sleeping units shall notapply to dwelling or sleeping units thatare both located above the first levelcontaining dwelling or sleeping unitsand that are not provided with elevatoraccess thereto.

3. Where multiple buildings on a siteare each not equipped with elevators,the percentage of required ground floorType B dwelling and sleeping unitsshall be equal to the percentage ofbuildings on the entire site havinggrades of less than 10 percent. The sitegrade shall be based on the siteconditions prior to development. In nocase shall the number of Type Bdwelling or sleeping units be less than20 percent of the ground floor dwellingor sleeping units on the entire site.

4. In areas where buildings arerequired to be constructed inaccordance with Section 3107.0, therequired number of Type A and Type Bdwelling units and Type B sleepingunits shall not apply * * *

5. Recreational facilities inaccordance * * *

6. Dwelling and sleeping unitsrequired to be Type B dwelling orsleeping units shall be permitted to bedesigned and constructed as Type Adwelling units.

7. Group homes intended to beoccupied by a single household anddetached single family homes occupiedby a single household.

Note: See other changes to 1107.4.2including Exceptions 1, 3, and 4 below underRecommendation numbers 7, 8, 9, and 17.


In this recommendation, theDepartment recommended that theExceptions to Section 1107.4.2 use theterm ‘‘structure’’ instead of ‘‘building.’’This was recommended both forconsistency with the chargingparagraph, and in order to ensure thatthe intent of the code, that, for purposesof accessibility, BNBC treats dwellingunits in buildings separated by firewallsas a single structure. Based on thepublic comments the Departmentreceived on this recommendation, theDepartment has withdrawn thisrecommendation.


BNBC defines Ground Floor DwellingUnit as follows:

Ground Floor Dwelling Unit (Section1102.0)—For application of the accessibilityrequirements, a ground floor dwelling unit isa dwelling unit with a primary entrance andhabitable space at ground level or the lowestfloor containing dwelling units, whether thatfloor is at or above grade.

The regulations define ‘‘ground floor’’as a ‘‘floor of a building with a buildingentrance on an accessible route. Abuilding may have one or more groundfloors.’’ 24 CFR 100.202. The Guidelinesfurther state: ‘‘Where the first floor

containing dwelling units in a buildingis above grade, all units on that floormust be served by a building entranceon an accessible route. This floor will beconsidered to be a ground floor. 56 FRat 9500.

If a building is built into a hill, forexample, and the front and the back ofthe building have entrances to dwellingunits at grade, but at differentelevations, the ground floor dwellingunits on both levels are covered underthe Guidelines. See the Questions andAnswers About the Guidelines questionnumber 6. 59 FR at 33364.

In Section 1107.4.2, BNBC requiresthat all dwelling units in Use Group R–2 containing four or more dwellingunits, and in Use Group R–3 wherethere are four or more dwelling units ina single structure be Type B dwellingunits. However, this section providesthe following exception to thisrequirement:

The requirement for Type B dwellingunits shall not apply to dwelling unitsthat are both located above the first levelcontaining dwelling units and that arenot provided with elevator access.

According to BNBC, in the exampleabove, the level at the lowest elevationis the only level required to haveaccessible dwelling units. Because theGuidelines clearly state that a groundfloor is a floor of a building with abuilding entrance on an accessible routeand that there can be more than oneground floor, it is clear in the exampleabove that both levels of that buildingbuilt into the hill are considered‘‘ground floors’’ and must comply withthe Guidelines.

BNBC, Section 1102, defines the term‘‘ground floor dwelling unit’’ as adwelling unit with a primary entranceand habitable space at ground level orthe lowest floor containing dwellingunits, whether that floor is at or abovegrade. However, BNBC does not refer tothe term in its provisions for accessibledwelling units (Section 1107.4.2,Accessible dwelling units). It is clearthat ground floor units can be at orabove grade, but it is unclear that therecan be more than one ground floor, orground floor units on different levels ofa building.

In its draft report, the Departmentoffered a recommendation that theBNBC modify its definition of ‘‘groundfloor dwelling unit’’ and refer to therevised term ‘‘ground floor’’ inException 2, Section 1107.4.2,Accessible dwelling units. As theDepartment stated in the introduction tothis report, it is mindful of the fact thatthe language in the regulations and theGuidelines is not couched in buildingcode terminology. The Department is,



therefore, withdrawing thisrecommendation. However, theDepartment maintains that the BNBC isinconsistent with the Act, theregulations and the Guidelines withrespect to requiring additional groundfloors to be accessible. The Departmentwill work with the model codeorganizations, and any other interestedpersons, to develop alternative languagethat will address this issue to theDepartment’s satisfaction.

In addition, during review of thepublic comments, two additionalconcerns arose: (1) Whether or not theBNBC scoping language, in combinationwith the definition of ‘‘ground floordwelling unit,’’ makes it clear that theremust be at least one ground floor, and(2) whether the language at Exception 2of 1107.4.2 results in requiring buildersto make the first level containingdwelling units of a building accessibleeven if it were more practical to makea different floor (such as the secondfloor) containing dwelling unitsaccessible when that floor is closer tothe grade, even if not ‘‘at grade.’’ TheDepartment will, however, work withthe model code organizations, and anyother interested persons, to developalternative language that will addressthis issue to the Department’ssatisfaction.

In the meantime, the Departmentbelieves that owners, builders,developers, designers, architects andothers involved in the design andconstruction of housing covered by theAct must apply the Department’sdefinition of ‘‘ground floor’’ whenmaking determinations whetherdwelling units or sleeping units in anon-elevator building with four or moresuch units are required to comply withthe Act.



In most cases, under BNBC, twostructures that are connected by abreezeway or stairway, for example, andshare the same roof as the breezeway orstairway are also considered onebuilding. As a result, if the total unitsin both structures equals four or more,

then the building must comply with theBNBC’s accessibility provisions.

It appears, however, that in caseswhere the breezeway or stairway thatstructurally connects both buildingsdoes not provide the only means ofegress and does not share the same roofas the two structures, whether or not itis considered one building must bedetermined by BOCA on a case-by-casebasis. In addition, in some cases, BOCAconsiders walkways, breezeways, andstairways accessory structures and notintegral to the building. If they aredetermined to be accessory structures,each building that they connect isexamined separately. As a result, BNBCmay not meet the requirements of theGuidelines in terms of covered unitsconnected by breezeways or stairways.


It is recommended that BNBC bemodified to include a revision toSection 3106.1.1, Separate structures, asfollows:

3106.1.1 Separate structures. Connectedbuildings shall be considered to be separatestructures. For purposes of calculating thenumber of Type B dwelling and sleepingunits as required by Chapter 11, structurallyconnected buildings and buildings withmultiple wings shall be considered onestructure.


The regulations determined that amultistory dwelling unit that does nothave an elevator internal to the unit thatis located in a building that does nothave an elevator is not a ‘‘coveredmultifamily dwelling’’ because theentire unit is not on the ground floor. 54FR at 3244. The Guidelines define a‘‘multistory dwelling unit’’ as adwelling unit with finished living spacelocated on one floor and the floor orfloors immediately above or below it. 56FR at 9500. A ‘‘single-story dwellingunit is defined as a dwelling unit withall finished living space located on onefloor. 56 FR at 9501.

BNBC includes the followingdefinitions in Section 1102.1:

Multistory dwelling unit. For applicationof the accessibility requirements, this termshall mean a dwelling unit with habitable orbathroom space located on more than onestory.

BNBC defines ‘‘habitable space’’(Section 1202) as a space in a structurefor living, sleeping, eating or cooking.Bathrooms, toilet compartments, closets,halls, storage or utility spaces andsimilar areas are not consideredhabitable spaces.

According to BNBC’s definition of‘‘multistory dwelling unit,’’ a unit isconsidered multistory if one levelcontains living or ‘‘habitable’’ space andthe floor next above or below containsonly a bathroom. According to thedefinitions in the Guidelines, and thefactors outlined above that theDepartment would consider in making adetermination as to whether or not theunit is a multistory unit, a two-levelunit with only a bathroom, or only abathroom and storage space on onelevel, is not a multistory dwelling unitbecause finished living space must belocated on both floors. 56 FR at 9500–01. Neither bathroom space alone nor acombination of bathroom space andstorage space constitute living space.BNBC’s definition of ‘‘multistorydwelling unit’’ does not meet the Act,regulations or Guidelines.


As a result, it is recommended thatthe reference to ‘‘or bathroom space’’ inthe BNBC’s definition of ‘‘multistorydwelling unit’’ be deleted as follows:

Section 1102, Definitions:Multistory dwelling unit: For application

of the accessibility requirements, this termshall mean a dwelling unit with habitablespace located on more than one story.

Single-Story Unit With a Loft/Mezzanine—(Draft RecommendationNumber 9)

Under Requirement 4 of theGuidelines, a single-story unit may havea loft without the requirement that therebe an accessible route to the loft;provided that all other parts of thedwelling unit are on an accessible route.56 FR at 9507. Only one loft, or raisedor sunken area, can be provided withina room and it cannot interrupt theaccessible route throughout theremainder of the dwelling unit. These‘‘special design features’’ cannot containtoilet facilities. 56 FR at 9507.

BNBC does not define or use the termloft, and instead uses the term‘‘mezzanine,’’ and defines this term asfollows:

Section 502: ‘‘Mezzanine’’ means anintermediate level or levels between thefloor and ceiling of any story with anaggregate floor area of not more thanone-third of the area of the room inwhich the level or levels are located.

BNBC Section 1107.4.3, Accessibleroute, includes an exception that statesthat mezzanines, and raised or sunkenfloors in Type B dwelling units are notrequired to be accessible provided theydo not contain or interrupt theaccessible route to the only bathingfacility, lavatory, water closet or living,



eating, sleeping or cooking areas in thedwelling unit. This provision impliesthat if there are two bathrooms orsleeping areas within a Type B unit, amezzanine or raised or sunken area ispermitted to interrupt the route to onebathroom or sleeping area, which doesnot meet the Guidelines.

BNBC does not state that only one ofthese ‘‘special design features’’ ispermitted within a room in a Type Bdwelling unit, and does not require thatif a mezzanine has an enclosed area ora toilet or bathing facility then it mustbe located on an accessible route.


To address these inconsistencies it isrecommended that BNBC deleteException 2, Section 1107.4.3 ascurrently written and replace it with thefollowing language:

Within Type B dwelling units one of thefollowing is not required to be on anaccessible route:

1. A raised floor area in a portion of aliving, dining, or sleeping room; or

2. A sunken floor area in a portion of aliving, dining, or sleeping room; or

3. A mezzanine that does not haveplumbing fixtures or an enclosed habitablespace.


The Guidelines specify sevenrequirements relating to accessibilitywhich reflect the language of the Actand the regulations. Compliance withthe provisions of the Guidelinesconstitutes a safe harbor for compliancewith the requirements of the Act. TheAct itself references the ANSI A117.1standard as a means for meeting thetechnical requirements of the Act. Asdiscussed in the Department’s policystatement, at the time the Act waspassed and the Guidelines were written,ANSI A117.1–1986 was in effect. Sincethat time, there have been twoadditional editions of ANSI A117.1published, the CABO/ANSI A117.1 in1992 and the ICC/ANSI A117.1 in 1998.

The Department believes thatcompliance with either of these newereditions of the ANSI–A117.1 constitutesan additional safe harbor in terms ofdemonstrating compliance with thetechnical provisions of the Act’saccessibility requirements. It is, ofcourse, still necessary to refer to the Actand the regulations, or the Guidelines,for implementing the scopingrequirements. The Department believesthat code officials may rely on theedition of ANSI A117.1 that has beenadopted by the code organization orstate or local jurisdiction, if it has been

adopted without modifications and isuniformly enforced.

BNBC utilizes the technical criteriacontained in CABO/ANSI A117.1–1992,and thus, HUD considers any BNBCrequirements that reflect that criteria tomeet the requirements of the Act, evenwhere they differ in small part from theANSI–1986 criteria.



Requirement 1 of the Guidelinesincludes specifications for providing anaccessible entrance on an accessibleroute, and explains that therequirements apply to a single buildingon a site and to multiple buildings ona site. In addition, Requirement 1includes specifications for determiningsite impracticality based on terrain andunusual site characteristics. 56 FR at9503–04. However, the Guidelinesspecify that covered multifamilydwellings with elevators shall bedesigned and constructed to provide atleast one accessible entrance on anaccessible route, regardless of terrain orunusual characteristics of the site. 56 FRat 9504.

BNBC’s provisions relating to anaccessible building entrance on anaccessible route are consistent with theGuidelines with the followingexceptions.

Site Impracticality Due to Terrain

The Guidelines set forth two tests toassess site impracticality due toterrain—the individual building test andthe site analysis test. 56 FR at 9503–04.

Individual Building Test—This testmay be used for all sites, but must beused for sites with a single buildinghaving a common entrance for all units.56 FR at 9503–04.


Step A requires the calculation of thepercentage of total buildable area of theundisturbed site with a natural slope ofless than 10%. A professional licensedengineer, landscape architect, architect

or surveyor must certify the analysis ofthe slope. 56 FR at 9504.

Step B states that the percentage ofground floor units that must be madeaccessible should be equal to the totalbuildable area of the undisturbed site(not including floodplains, wetlands, orother restricted areas) that has anexisting natural grade of less than 10%slope (previously determined in StepA). 56 FR at 9504.


For example, according to theGuidelines’ site analysis test fordetermining impracticality due toterrain, if 60% of the total area of anundisturbed site has an existing naturalgrade of less than 10% slope, then 60%of the ground floor units are required tobe served by an accessible entrance onan accessible route. If we construct twobuildings not served by elevators on thatsite, each with 20 ground floor units fora total of 40 ground floor dwelling unitson the entire site, then 24 ground floordwelling units (60% of ground floorunits) must have an accessible entranceon an accessible route. In addition,according to step C of the site analysistest, all ground floor units in thebuilding, or ground floor units served bya particular entrance, shall be madeaccessible if the entrance to the units ison an accessible route.

Variances Related to the Site AnalysisTest—(Draft Recommendation Number10)

Section 1107.4.2, Exception 3,attempts to correspond to Steps A andB of the site analysis test. However, itprovides that where multiple buildingson a site are each not equipped withelevators, the percentage of requiredground floor Type B dwelling unitsshall be equal to the percentage ofbuildings on the entire site having sitegrades of 10 percent or less, and not thepercentage of buildable area having sitegrade of less than 10 percent which isrequired by the Guidelines. 56 FR at9504. Thus, BNBC does not meet thespecifications of the Guidelines.

BNBC also fails to provide equivalentlanguage to Step C—i.e., it does notrequire that, in addition to thepercentage of ground floor unitsrequired to be accessible, all ground



floor units in buildings, or ground floorunits served by a particular entrance,must be made accessible if the entranceto the units is on an accessible route. 56FR at 9504. Therefore, BNBC does notmeet this aspect of the Guidelines.

In addition, according to theGuidelines, regardless of siteconsiderations, an accessible entranceserved by an accessible route is practicalwhenever an elevator connects parkingwith a ground floor, in which case allground floor units are covered, orwhenever an elevated walk with a slopeno greater than 10% is planned betweenan entrance and a pedestrian orvehicular arrival point. 56 FR at 9504.BNBC does not include any languagethat reflects these requirements. As aresult, BNBC does not meet theprovisions of the Guidelines on theseissues as well.


In order to address theseinconsistencies, it is recommended thatException 3, Section 1107.4.2 be revisedas follows:

Where multiple structures on a site areeach not equipped with elevators, thepercentage of required ground floor Type Bdwelling and sleeping units shall be equal tothe percentage of the entire site havinggrades, prior to development, which are lessthan 10%; but in no case shall the numberof Type B dwelling and sleeping units be lessthan 20 percent of the ground floor dwellingand sleeping units on the entire site. Inaddition to the percentage established, allground floor dwelling and sleeping units ina structure, or ground floor dwelling andsleeping units served by a particular entranceshall be Type B if any one of the followingapplies:

3.1 The slope between the entrance to thedwelling or sleeping units and a pedestrianor vehicular arrival point is no greater than8.33%; or


3.3 An elevated walkway with a slope notexceeding 10 percent is planned between anentrance and a pedestrian or vehicular arrivalpoint. The slope of the walkway, in suchcases shall be reduced to no greater than8.33%.

Variance Related to Buildings WithElevators—(Draft RecommendationNumber 11)

According to the Guidelines,buildings with elevators must providean accessible entrance on an accessibleroute regardless of site impracticality.56 FR at 9504. BNBC does not reflectthis requirement in Section 1107.4.2,Exception 4.


It is recommended that Exception 4,Section 1107.4.2 be modified so that theException does not apply to buildingswith elevators.

In areas where buildings are required to beconstructed in accordance with Section3107.0, the required number of Type A andType B dwelling units and Type B sleepingunits shall not apply to a site where thelowest floor or the lowest structural buildingmembers of non-elevator buildings isrequired to be at or above the base floodelevation resulting in * * *


The Act and the regulations providethat covered multifamily dwellings witha building entrance on an accessibleroute be designed and constructed in amanner so that the public and commonuse areas are readily accessible to andusable by people with disabilities. 42U.S.C. 3604 (f)(3)(C)(i); 24 CFR 100.205(c)(1). The Guidelines’ Requirement 2cites the appropriate section of the ANSIA117.1–1986 Standard for the technicalprovisions for 15 accessible elements orspaces, and describes the application ofthe specifications includingmodifications to the referencedstandard. 56 FR at 9505. Following arethe 15 basic elements or spaces foraccessible and usable public andcommon use areas or facilities:Accessible routes,Protruding objects,Ground and floor surface treatments,Parking and passenger loading zones,Curb ramps,Ramps,Stairs,Elevators,Platform lifts,Drinking fountains and water coolers,Toilet rooms and bathing facilities,Seating, tables, or work surfaces,Places of assembly,Common-use spaces and facilities,Laundry rooms.56 FR at 9505

When a variance is identified in theBNBC that does not meet therequirements of the Guidelines for eachof the 15 elements or spaces above, theyare noted below.

Scoping of Accessibility Requirementsfor Public and Common Use Facilities—(Draft Recommendation Number 12)

As stated above, the Act, regulations,and Guidelines require accessible publicand common use areas for all coveredmultifamily dwellings. 42 U.S.C. § 3604(f)(3)(c)(i); 24 CFR 100.205 (c) (1);Section 1107.4.2 of the BNBC states thatin occupancies in Use Group R–2, all

rooms and spaces available to thegeneral public and all such spacesavailable for the use of the residentsserving accessible dwelling units shallbe accessible. This provision does notinclude Use Group R–3 in that sentence.However, in Section 1107.4.3,Accessible Route, BNBC states thefollowing:

In occupancies in Use Group R–2 andR–3, at least one accessible route shallconnect accessible building or facilityentrances with all accessible dwellingunits within the building or facility andwith those exterior and interior spacesand facilities that serve the accessibledwelling units.

It is clear from Section 1107.4.3 thataccessible routes to public and commonareas are intended to be required in bothUse Groups R–3 and R–2.


For clarity, it is recommended thatSection 1107.4.2 be modified to includeUse Group R–3 as follows:

Section 1107.4.2, Accessible dwellingunits:

In occupancies in Use Group R–2 and R–3, all rooms and spaces available to thegeneral public and all such spaces availablefor the use of the residents serving accessibledwelling and sleeping units shall beaccessible.

Accessible Route(s)—(DraftRecommendation Number 13)


BNBC, Section 1107.4.3 containslanguage that is comparable to theGuidelines with one exception. Thatsection states:

If the slope of the finished groundlevel between accessible facilities andbuildings exceeds one unit vertical in 12units horizontal, or where physicalbarriers prevent the installation of anaccessible route, a vehicular route withparking at each accessible facility orbuilding is permitted in place of theaccessible route.

BNBC does not include languagemaking it clear that accessible parkingmust be available at the accessible



facility if access is provided by avehicular route. In addition, referencemust be made to ‘‘structures’’ and not‘‘buildings’’ (see discussion of thedefinition of ‘‘building’’ above.)


It is recommended that BNBC, Section1107.4.3, Exception 1, be modified toinclude the following language:

If the slope of the finished ground levelbetween accessible facilities and structuresexceeds one unit vertical in 12 unitshorizontal (1:12), or where physical barriersprevent the installation of an accessibleroute, a vehicular route with accessibleparking in accordance with Section 1105 ateach public and common use facility ispermitted in place of the accessible route.


Based on the public commentsreceived, the Department hasdetermined that the BNBC adequatelyaddresses this issue.

Parking and Passenger Loading Zones—(Draft Recommendation Numbers 15,16, 17 and 18)

The Guidelines provide thataccessible parking on a route accessibleto persons in wheelchairs be providedfor at least 2% of the covered dwellingunits, and that there be accessiblevisitor parking sufficient to provideaccess to grade level entrances ofcovered multifamily dwellings, andaccessible parking at facilities. 56 FR at9505.

Section 1105, Parking Facilities, of theBNBC requires that, where parking isprovided, accessible parking spacescomplying with CABO/ANSI A117.1 beprovided in compliance with Table1105.1, except as required by Sections1105.2 and 1105.3.

Section 1105.2, Use Group R–2, ofSection 1105, Parking Facilities,requires that 2% of parking spacesprovided for occupancies in use GroupR–2 which are required to haveaccessible dwelling units shall beaccessible. Section 1105.3 does notapply to Use Groups R–2 or R–3 and isnot applicable. Table 1105.1 stipulatesthe minimum number of accessiblespaces required according to the totalnumber of parking spaces provided.Since 1105.2 clearly applies to UseGroup R–2 and not R–3, one must referto Table 1101.1 for the requiredminimum number of accessible spacesrequired for Use Group R–3.


It is recommended that Section1105.2, Use Group R–2, be modified toinclude R–3 occupancies, as follows:

Section 1105.2, Use Group R–2 and R–3Two percent of parking spaces provided for

occupancies in Use Group R–2 and UseGroup R–3 which are required to haveaccessible dwelling or sleeping units shall beaccessible.

Section 1105.1, Required, should bemodified to:

Where parking is provided, accessibleparking spaces complying with CABO/ANSIA117.1–1992 listed in Chapter 35 shall beprovided in compliance with Sections 1105.2and 1105.3.

By modifying Section 1105.2 toinclude the reference to the R–3 UseGroup, Table 1105.1 (required minimumnumber of accessible spaces for R–3dwellings) and any reference to it maybe eliminated.

The Questions and Answers Aboutthe Guidelines (Question and Answer14c) states that where there are severalindividual parking garages groupedtogether either in a separate area of thebuilding (such as at one end of thebuilding, or in a detached building), forassignment or rental to residents, atleast 2% of the garages must be at least14′2″ wide and have a vehicular door atleast 10′ wide. 59 FR at 33366. Thisassumes that garage parking is the onlytype of parking provided at the site.

Question and Answer 14c providesthe minimum requirement for the widthof accessible garages and garage doors.The minimum widths provide enoughspace for an automobile to enter thegarage, and for a passenger or driverusing a wheelchair to exit through thegarage door without interference by theautomobile. However, the minimumrequirements do not preclude a garagedesign that provides equivalent orgreater accessibility. For example, adesigner may choose to design a garagewith a door that is 8 feet wide, butprovides a separate accessible exit doorthrough which the driver or thepassenger may exit, provided that itconnects to the accessible route to theentrance of the unit.

The BNBC does not provide minimumrequirements for these garages, andtherefore, does not meet this provisionof the Guidelines.

The Guidelines provide that ifprovided at the site, accessible visitorparking sufficient to provide access tograde level entrances of coveredmultifamily dwellings, and accessibleparking at facilities must be provided.The Guidelines also require accessibleparking on the same terms and with thefull range of choices (e.g., surface

parking or garage) that are provided toother residents of the project. 56 FR at9505.

In addition, the Questions andAnswers About the Guidelines providefurther clarification of the parkingrequirements at Q&A 14(b), whichclarified that when more than one typeof parking is provided, at least onespace for each type of parking should bemade accessible even if this numberexceeds two percent.

The Department is not recommendingthat the BNBC revise any of its broaderscoping requirements for parking.However, the BNBC does not includecomparable language in Section 1105,Parking Facilities, with respect to theabove variances. Therefore, the BNBCdoes not meet the provisions of theGuidelines with respect to these issues.


In order to address these twoinconsistencies, it is recommended thatBNBC include a reference to R–3 inSection 1105.2, Group R–2, as indicatedin Recommendation 11 above, andmodify that Section as follows:

At least 2% of parking garages provided forR–2 and R–3 occupancies required to haveaccessible dwelling or sleeping units wherethere are several individual garages groupedtogether, either in a separate area of abuilding or in a detached building, forassignment or rental to residents, must be atleast 14′2″ wide and have a vehicular doorat least 10′ wide. * * *

* * * Where accessible parking spaces areprovided, at least one of each type (surfaceparking, carports, or garage) shall beprovided.

* * * Where visitor parking is provided, atleast one accessible visitor parking spaceshall be provided.

* * * Where parking is provided at publicand common use facilities that serveaccessible buildings, at least one accessibleparking space shall be provided.

It is not clear in BNBC whetherpassenger loading zones are required tocomply with the requirements of theGuidelines.


In order to ensure that passengerloading zones comply with therequirements of the Guidelines, it isrecommended that BNBC add aprovision under Section 1105 whichstates the following:

When provided, passenger loading zonesshall be located on an accessible route.Passenger loading zones shall be designedand constructed in accordance with CABO/ANSI A117.1–1992.

Table 1105.1, Accessible ParkingSpaces includes a note that states ‘‘the



accessible space shall be provided but isnot required to be designated asreserved for physically disabled.’’ Inaddition, Section 1109.2, Signs,indicates that elements shall beidentified by the International Symbolof Accessibility at four locations, thefirst of which states that it is requiredat accessible parking spaces required by1105.1 (Parking Facilities) except wherethe total parking spaces provided arefive or less. This does not meet therequirements of the Guidelines whichrequire signage at all accessible parkingspaces.


It is recommended that BNBC deletethis language from provision 1 underSection 1109.2. If deleted, the note inTable 1105.1 will no longer apply.


The Guidelines require thataccessibility be provided on stairslocated along accessible routesconnecting levels not connected by anelevator. 56 FR at 9505. For example, aground floor entry might have steps upto a bank of mailboxes, with a ramplocated beside the steps. The stairs inthis case are required to meet the ANSIA117.1 specification, since they will beused by people with disabilities forwhom stairs are more usable thanramps. However, stairs are not acomponent of an accessible route.

There are variances between theprovisions of BNBC and the Guidelines’requirements for stairs along accessibleroutes regarding tread and risermeasures, and handrails for example.


It is recommended that BNBC includea provision for stairways under Section1108, Building Features and Facilities asfollows:

StairwaysStairways located along accessible routes

connecting floor levels that are not connectedby an elevator shall be designed andconstructed to comply with CABO/ANSIA117.1–1992.

Alternatively, the Department recommendsthat BOCA consider adopting the technicalrequirements for residential elevators foundin ICC/ANSI A117.1–1998.

Elevators—(Draft RecommendationNumber 20)

The Guidelines require that elevatorson accessible routes be accessibleaccording to the technical specificationsof ANSI A117.1, Section 4.10, Elevators.Section 1108.4 of BNBC, Elevators and

Stairway and Platform Lifts, states thatall passenger elevators on an accessibleroute shall be accessible. It also statesthat elevators required to be accessibleshall be designed and constructed tocomply with Section 3006 whichreferences conformance with CABO/ANSI A117.1–1992.

The technical specifications forelevators required by both theGuidelines and BNBC are equivalent.However, BNBC provides an exceptionto Section 1108.4, Elevators, thatexempts elevators within dwelling unitsfrom being accessible. This does notmeet the requirements of the Guidelinesbecause elevators within multistoryunits must provide accessibility.


It is recommended that the exceptionto 1108.4 be eliminated.

Recreational Facilities

The Guidelines, in Requirement 2,state that: ‘‘If provided in the facility orat the site; (a) where multiplerecreational facilities (e.g., tennis courts)are provided sufficient accessiblefacilities of each type to assure equitableopportunity for use by persons withhandicaps’’ shall be provided. Thesefacilities must be connected by anaccessible route to the covered dwellingunits or a vehicular route if anaccessible route is not possible. TheBNBC Section 1107.4.4 requires 25%,but not less than one, of recreationalfacilities of each type in each occupancygroup to be accessible.

The Department concludes that theGuidelines may be interpreted to bestricter than the requirements of themodel codes with respect to therequirement for accessible recreationalfacilities because an interpretation of‘‘sufficient to provide equitableopportunity for use’’ may result indeterminations that recreationalfacilities that serve different buildingscontaining accessible dwelling unitsmust be accessible, even if this meansmaking all of the same type ofrecreational facility accessible (such astwo swimming pools on a large site,each which serves different buildings onthe site).



Requirement 3: Usable Doors

The Act and regulations require thatall doors designed to allow passage intoand within a covered dwelling unit besufficiently wide to allow passage bypersons in wheelchairs. 42 U.S.C. § 3604(f)(3)(C)(ii); 24 CFR 100.205(c)(2). TheGuidelines set forth criteria to meet thisrequirement. The Guidelines also setforth additional guidance regardingdoors that are a part of an accessibleroute in the public and common useareas of multifamily dwellings and todoors into and within individualdwelling units. 56 FR at 9506.


common use areas, and for primaryentry doors to covered units, doors thatcomply with ANSI A117.1 4.13 willmeet the Act’s requirements for usabledoors; and Within individual dwellingunits, doors intended for user passagethrough the unit which have a clearopening of at least 32 inches nominalwidth when the door is open 90 degrees,measured between the face of the doorand the stop, would meet the Act’srequirement.

The Department has determined thatBNBC meets the requirements of theAct, regulations, and the Guidelines forusable doors.

Requirement 4: Accessible Route intoand Through the Covered Dwelling Unit

The Act and regulations require thatall covered multifamily dwellings witha building entrance on an accessibleroute shall be designed and constructedin such a manner that all premiseswithin covered multifamily dwellingunits contain an accessible route intoand through the covered dwelling unit.42 U.S.C. § 3604 (f)(3)(C)(iii)(I); 24 CFR100.205 (c)(3)(i). Requirement 4 of theGuidelines sets forth criteria to meetthis requirement. 56 FR at 9509–10.BNBC meets the provisions of the Act,regulations, and Guidelines with respectto Requirement 4, except the following:

Multistory Units in Elevator Buildings—(Draft Recommendation Number 21)

Among the criteria in Requirement 4is the requirement that in multistorydwelling units in buildings withelevators, the story of the unit that is



served by the building elevator is theprimary entry to the unit. 56 FR at 9507.

BNBC, Section 1107.4.2, provides thefollowing exceptions to the requirementfor Type B units as follows:

In buildings without elevators,multistory dwelling units are notrequired to comply with therequirements for Type B units. Where amultistory dwelling unit is providedwith elevator service to only one floor,the floor provided with elevator serviceshall comply with the requirements fora Type B dwelling unit and a toiletfacility shall be provided on that floor.


It is recommended that BNBC modifySection 1107.4.2, Exception 1, asfollows:

In buildings without elevators, multistorydwelling units are not required to complywith the requirements for Type B dwellingunits. Where a multistory dwelling unit isprovided with elevator service to only onefloor, the floor provided with elevator serviceshall be the primary entry to the unit, shallcomply with the requirements for Type Bdwelling units and a toilet facility shall beprovided on that floor.

Requirement 5: Light Switches,Electrical Outlets, Thermostats andOther Environmental Controls inAccessible Locations

The Act and regulations require thatall covered multifamily dwellings witha building entrance on an accessibleroute shall be designed and constructedso that all premises within the coveredunits contain light switches, electricaloutlets, thermostats, and otherenvironmental controls in accessiblelocations. 42 U.S.C. 3604 (f)(3)(C)(iii)(II);24 CFR 100.205(c)(3)(ii). Requirement 5of the Guidelines sets forth criteria tomeet these requirements. 56 FR at 9507.BNBC meets the provisions of the Act,regulations, and Guidelines with respectto Requirement 5.

Requirement 6: Reinforced Walls forGrab Bars—(Draft RecommendationNumber 22)

Requirement 6 of the Guidelines setsforth technical specifications to meet 42U.S.C. 3604(f)(3)(C)(iii)(III), 24 CFR100.205(c)(3)(iii) which specifies that allcovered multifamily dwellings with abuilding entrance on an accessible routeshall be designed and constructed sothat all premises within the coveredunits contain reinforcements inbathroom walls to allow laterinstallation of grab bars around toilet,tub, shower stall and shower seat, where

such facilities are provided. 56 FR at9509–10. BNBC refers to theInternational Plumbing Code, 1995, forthe technical specifications forreinforcement in walls for grab bars.

Although it is the intent of theInternational Plumbing Code, 1995, torequire grab bar reinforcement atfixtures located away from walls,sunken or raised tubs for example, onecannot make that clear determination.


It is recommended that BNBC add anexception under section 1108.2, Toiletand bathing facilities as follows:

Section 1108.2 Toilet and bathing facilities:Within dwelling and sleeping units

required by 1107.4.2 to be accessible,alternative reinforcement complying withCABO/ANSI A117.1–1992 4.24 2.5 and4.24.3 shall be provided for the mounting ofgrab bars where fixtures are located awayfrom walls.


The Act and regulations provide thatall covered multifamily dwellings witha building entrance on an accessibleroute shall be designed to have usablekitchens and bathrooms such that anindividual in a wheelchair canmaneuver about the space. 42 U.S.C.3604 (f)(3)(C)(iii)(IV); 24 CFR 100.205(c)(3)(iv). Requirement 7 of theGuidelines sets forth technical criteriato meet those requirements. 56 FR at9511–15.


The Guidelines address a parallelapproach to kitchen sinks inRequirement 7 at 56 FR 9511. Theparallel approach to the sink isaddressed in Figure 7(c). 56 FR at 9514.The ANSI A117.1–1986 standardrequires, with respect to sinks andlavatories, a forward approach withclear floor space below, and illustratesthe forward approach centered on thesink/lavatory. (ANSI A117.1–1986,Fig.32 on page 50). The Department’sGuidelines allowed a departure from theANSI standard. The Guidelines permitthe clear floor space to be designed fora parallel position. 56 FR at 9511–12.While the Guidelines only show theclear floor space centered on thelavatory [Fig. 7 (c)], it is equallyapplicable to the sink.

The International Plumbing Code,1995 which provides the technicalprovisions for Type B kitchens does notrequire that the parallel approach to

sinks shall be centered on the sinkwhich does not meet the requirementsof the Guidelines.


It is recommended that BNBC add anexception to Section 1108.3, Kitchens,as follows:

Exception: If a parallel approach isprovided at the sink, it shall be centered onthe sink.

Usable Bathrooms—(DraftRecommendation Number 24)

The Guidelines provide two optionsfor designing accessible bathrooms. 56FR at 9511. The first option requires aminimal level of accessibility. Thisoption requires that walls be reinforcedfor grab bars and sufficient maneuveringspace be provided within the bathroomfor a person using a wheelchair or othermobility aid to enter, close the door, usethe fixtures, reopen the doors and exit.56 FR at 9511.

The second option for designingaccessible bathrooms provides a greaterlevel of accessibility than that providedby the first option. 56 FR at 9511. Thesecond option requires reinforced wallsfor grab bars, clear space at specificlocations within the bathroom to permituse of the fixtures, and specificclearances for fixtures.

According to the Guidelines, onlybathrooms on the accessible level aresubject to the requirements. If a powderroom is the only facility provided on theaccessible level of a multistory dwellingunit; it must comply with the first orsecond option for designing accessiblebathrooms and have reinforcement forgrab bars. 56 FR at 9511.

As discussed in reference to kitchensabove, the Guidelines require thecentering of the parallel approach on thelavatory. 56 FR at 9512. TheInternational Plumbing Code, 1995,does not require the centering of theparallel approach on the lavatory basinwhich does not meet the requirementsof the Guidelines.


It is recommended that BNBC add anexception under Section 1108.2 asfollows:

Exception: If a parallel approach isprovided at the lavatory, it shall be centeredon the lavatory.[FR Doc. 00–6968 Filed 3–22–00; 8:45 am]BILLING CODE 4210–32–P
