Student Housing Design and Construction - Watch Out for the Feds!
December 24, 2003
Christopher B. "Chris" Hanback- Washington
As the children of the baby boomer generation graduate from high school, enrollment at colleges and universities is growing dramatically. With limited space available at traditional four-year residential colleges, students seeking a residential college experience are choosing among a broader range of schools based on the quality of student housing.
At the same time, students’ campus living expectations have changed from their parents’ generation. Group showers no longer make the grade. Not only do more students want a residential college living experience, but they expect private bedrooms with bathrooms and kitchens in addition to recreational facilities. Indeed, housing pressures are filtering down to universities and community colleges that traditionally have catered to a commuter population.
To meet these needs, universities and colleges have turned to the apartment developer to bring the design, construction and management skills of the private sector to bear in providing student housing. While housing is being built both on-campus and off-campus, increasingly, university foundations and affiliates are being utilized to develop new housing with for-profit financing models. This private development approach may free or ease university budget concerns and avoid the delays inherent in the involvement of state legislatures and state agencies.
Litigation is increasing
Design and new construction of student living facilities, however, pose not only the more familiar challenges of complying with federal laws to assist persons with disabilities, but also special application of those laws to student living projects. Often these requirements are unfamiliar and unexpected by developers, architects, university officials and their counsel.
Nevertheless, the Civil Rights Division of the Department of Justice is actively pursuing seven-figure investigations of, and litigation against, major national developers of multifamily housing that have constructed projects over the past few years. The Department of Justice is aggressively pursuing extreme interpretations of accessibility design requirements including alleged deficiencies considered within expected “construction tolerances.” While student living apartment construction has not been the principal focus of such federal actions, alleged deficiencies at student housing properties are included in the investigations.
Fair Housing Act
Several different federal laws and regulations impact the design and construction of student housing. The first is the Fair Housing Act, 42 U. S. C. § 3604(f)(3)(C). A surprising number of developers, architects and university officials still do not appreciate that the Fair Housing Act contains specific federal accessible design requirements that apply to student living projects built in apartment suite design.
The Fair Housing Act requires that every dwelling unit in an elevator building and every ground floor unit in a non-elevator garden-style apartment contain certain accessibility features. In addition, the Fair Housing Act requires that certain public and common areas in student living facilities be accessible to persons with disabilities. This is a different and separate requirement from the more familiar scheme of the Americans with Disabilities Act (ADA), which focuses on setting aside a percentage of accessible units in certain types of lodging.
The Rehabilitation Act
The Rehabilitation Act (29 U. S. C. § 794) requires that disability design features be included in projects constructed using financing provided by the Department of Housing and Urban Development (HUD). If other federal financing is involved, the project also could be subject to the Architectural Barriers Act. In such cases, design must follow ADA requirements or similar requirements under Uniform Federal Accessibility Standards.
Title III of the ADA
It is generally understood that Title III of the ADA (42 U. S. C. § 12181) applies to “public accommodations” and “commercial facilities,” such as hotels, retail establishments and office buildings. However, Title III also applies to areas of student living projects that are open to the public, including leasing offices, parking and certain recreational facilities. Title III’s application to the interior design of student housing may be triggered if the facility is operated as a “transient lodging” (e g., dormitory), rather than an apartment dwelling, as a result of leasing policies such as matching of roommates.
Title II of the ADA
Of particular concern for public universities is the application of Title II of the ADA (42 U. S. C. §12131) to their sponsored student housing. Governing the obligation of “public entities,” such as state and local government and public authorities, the Act is most often encountered in requirements to provide accessible features for sidewalks, libraries, museums and the local courthouse.
Title II, however, applies equally to construction of student apartment communities controlled by public universities and colleges. The situation becomes particularly complex when public universities and colleges use an affiliate, such as a foundation or booster club, to own and develop “off-campus” student housing. In such instances it must be determined whether the project is being designed and constructed by a “public entity.” Indeed, it may be possible to structure project ownership and financing to avoid the application of Title II.
Another concern is that, unlike in Title III of the ADA, there is no elevator exemption for buildings subject to Title II of the ADA (28 CFR §35.151). Thus, a two- or three-story garden apartment, subject to Title II, must include an elevator.
How important is this?
The apartment industry is currently under attack by HUD, state agencies, public advocacy groups and the Department of Justice for alleged deficiencies in complying with federal accessibility laws. As the industry has learned, you cannot simply rely on your architect saying: “Oh sure, I’ve got that covered.” If there is a design problem, the developer is liable, and the architectural firm usually has very limited professional liability insurance coverage. Further, many architects mistakenly have assumed that state law requirements for the set-aside of a certain number of accessible units satisfy federal requirements.
A prominent Midwest architectural firm told a developer client that certain federal requirements did not apply to the client’s newly designed apartment complex. Within a few months, after embarrassing themselves in a meeting before a state agency, the architect’s professional liability carrier paid almost $1 million to settle the design deficiencies on a single apartment project.
You need a good architect to design your student housing community. But make sure that you also have a knowledgeable lawyer to determine which federal legal requirements apply and to structure deals to minimize costs in achieving compliance.
For more information, e-mail Christopher Hanback at christopher.hanback@hklaw.com or call toll free, 1-888-688-8500.