UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED sTATEs oF AMERICA, )
)
Plaintiff, )
)
v. ) civil ease No. 10-1866 (RJL)
)
MID-AMERICA APARTMENT ) |'-‘ 1 |_ E o
CoMMUNITIEs, INC., er al., ) _
) MAR 2 7 2017
Defendants. )
Cl k. U.S. Dl$h’l¢f&
".n::ts for the Dlstl'l¢tm
MEMoRANDUM oPINIoN

 

March ;‘2, 2017 [Dkts. #90, #93]

Plaintiff, the United States of America (“the Govemment”), brings suit against
defendants Mid-America Apartment Communities, Inc. and Mid-America Apartments,
L.P., alleging that its predecessor companies, Post Properties, Inc., Post Apartment
Homes, L.P., and Post GP Holdings, Inc. (together, “Post”), engaged in a pattern or
practice of discrimination under the Fair Housing Act, as amended by the Fair Housing
Amendments Act of 1988 (“the FHA”), 42 U.S.C. §§ 3601-31, and Title III of the
Americans With Disabilities Act of 1990 (“the ADA”), z'd. §§ 12181-89. Compl. ll 1
[Dkt. #l]. Because “Post” became “Mid-America” only recently [Dkt. #l l l], and the
events and filings at issue here all took place While the companies were still operating as
“Post,” I Will continue to refer to the defendants by that name in this opinion. This matter
is before the Court on motions by both the Govemment and Post to clarify certain legal
issues in advance of trial. See Defs.’ Mot. to Resolve Legal Issues in Advance of Trial

[Dl<t. #90]; U.S.’s Mot. for Pre-Trial Rulings [Dkt. #93]. Namely, the parties seek

guidance on what sort of evidence would be legally sufficient to satisfy the Government’s
burden to demonstrate that Post has engaged in a pattern or practice of discriminatory
behavior under the FHA and what sort of evidence is legally relevant to contradict that
contention. Additionally, Post seeks an evidentiary ruling as to the appropriate scope of
expert witness testimony. It also seeks to exclude from evidence a number of the 50
multifamily dwellings that the Govemment has alleged have accessibility problems,
claiming that they are inadmissible to support the Government’s pattern or practice claim.
As l explain more fully with respect to each issue below, the parties’ motions are each
GRANTED IN PART and DENIED IN PART.

I. The Proper Role of the HUD Guidelines in Proving an Instance of Housing
Discrimination Is Limited.

The FHA prohibits housing discrimination on the basis of a handicap 42 U.S.C.
§ 3604(1). In the type of dwellings at issue here, which the statute seeks to regulate, the
FHA requires that public areas must be “readily accessible to and usable by handicapped
persons,” the doors must be wide enough to allow passage into and within the premises
by people in wheelchairs, and the individual units must contain four enumerated features
of “adaptive design.” 1 Id. § 3604(f)(3)(C). The statute charges the Secretary of the
Department of Housing and Urban Development with the responsibility to enforce these

requirements by bringing administrative enforcement actions to correct non-compliant

 

' The four features of adaptive design are “(I) an accessible route into and through the dwelling; (II) light
switches, electrical outlets, therrnostats, and other environmental controls in accessible locations; (III)
reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and
bathrooms such that an individual in a wheelchair can maneuver about the space.” 42 U.S.C.

§ 3 604(f)(3 )(C)(iii).

buildings See 42 U.S.C. § 3601, et seq. Additionally, a “failure to design and construct”
a building in accordance with these requirements constitutes discrimination “because of a
handicap” under the FHA and the statute charges the Department of Justice with the
responsibility to pursue claims against parties who engage in a pattern or practice of
discrimination of this kind. Id. § 3604(f}; id. § 3614(a).

In this case, the Govemment claims that Post has engaged in a pattern or practice
of discrimination by failing to design and construct 50 multifamily dwellings in
accordance with the accessibility requirements of the FHA over 20 years, from 1997 to
2008. Compl. 1111 16-20. To win the pattern or practice case, the Govemment must prove

66

that designing and constructing inaccessible dwellings was Post’s standard operating
procedure, the regular rather than the unusual practice.” Int ’l Bha'. Of Teamsters v.
Um'tea’ States, 431 U.S. 324, 336 (1977).

As evidence, the Govemment plans to rely on expert testimony that the 50
properties did not satisfy the set of measurements and specifications known as the HUD
Guidelines, which are a set of criteria developed by the Department of Housing and
Urban Development (“HUD”) that serve to warn the public what it will consider
presumptively accessible when it decides whether to bring an enforcement action
charging that a building fails to meet the requirements of the FHA. U.S.’s Mem. of P. &
A. ISO Its Mot. for Pre-Trial Rulings (“Gov’t’s Mem.”) 2 [Dkt. #93-1]. By virtue of this
warning, the HUD Guidelines provide a concrete benchmark for builders to know,

regardless what the law actually requires, that HUD will not prosecute them under it, a

phenomenon commonly referred to as a prosecutorial “safe harbor.” But the Govemment

3

is here seeking to turn this shield into a sword. lt argues that if it establishes that Post’s
50 properties do not comply with the HUD Guidelines, it is entitled to a presumption,
rebuttable only by a narrow category of evidence, that the buildings were not designed
and constructed in compliance with the FHA. Ia’. The Government reasons that the
rebuttable presumption is warranted because the HUD Guidelines are the least restrictive
of ten sets of accessibility criteria that HUD has approved as safe harbors for builders
See id. at 4 (quoting 56 Fed. Reg. 9476 for the proposition that the HUD Guidelines
“describe minimum standards of compliance with the specific accessibility requirements
of the Act”). Furthermore, it points out that if the HUD Secretary had brought an
administrative action to challenge the design of each property, the agency Would have
been owed deference in the decision to use the HUD Guidelines to establish a rebuttable
presumption of non-compliance. See id. at 8-11; U.S.’s Reply ISO lts Mot. for Pre-Trial
Rulings 2-5 [Dkt. #96]. These arguments are unavailing because, as a general matter, the
internal operating procedures of HUD are not dispositive for the federal courts.
Furthermore, Congress has not delegated authority to HUD to define the minimum
standards for accessibility, and therefore the Court has no reason to defer dispositiver to
HUD’s interpretation or to adopt its procedure in this pattern or practice case.

lt is true that HUD relies on the Guidelines as part of a burden-shifting framework
it uses for administrative enforcement actions. Under that framework, HUD establishes a
prima facie case of inaccessibility in violation of the FHA by showing non-compliance
with the HUD Guidelines. Thereafter, the burden shifts to the defendant to demonstrate

compliance with either a different HUD safe harbor or another “comparable standard,”

4

which HUD interprets to mean only a comprehensive set of specifications and
measurements similar to one of its sets of safe harbor criteria. See Gov’t’s Mem. at 7; 24
C.F.R. § 100.201. According to the Government, this framework has “the force of law”
because it was adopted by HUD in what the parties refer to as the Nelson Order, named
after the administrative adjudication in which the HUD Secretary outlined how the
agency would exercise its enforcement powers under the FHA. See id. at 7-9 (quoting
HUD ex rel. Mont. Fair Hous., Inc. v. Brent Nelson, No. HUDALJ 05-068FH, 2006 WL
4573902 (Sept. 21, 2006),petiti0nf0r review denied 320 F. App’x 635 (9th Cir. 2009)).
But the Govemment is wrong to suggest that the Nelson Order has any binding force
outside the agency.

Indeed, on its face the Nelson Order does not purport to bind federal courts in any
way. Moreover, it would be inappropriate for a federal court to give Chevron deference
to the Nelson Order in a case such as this where the Court is not reviewing agency action.
This is not a case where HUD applied the Nelson Order, or the HUD Guidelines, in an
enforcement action that the court is then asked to review. Nor does the Government
point to any evidence in the text of the FHA that it was delegated authority to draft either
the minimum specifications for accessibility or the procedure for determining the fact of
accessibility. To the contrary, the only rulemaking authority that the FHA delegates to
HUD is specifically cabined to the procedures necessary to pursue its enforcement

discretion. See 42 U.S.C. § 3614a.2 In short, I can find no precedent for giving Chevron

 

2 The text of the sole rulemaking delegation in the FHA reads: “Rules to Implement Subchapter: The
Secretary may make rules (including rules for the collection, maintenance, and analysis of appropriate

5

deference to an agency’s recommendation to the Court about what a statute means in a
civil action that is completely independent of the agency’s enforcement apparatus

In this context, it is the Court’s job, not HUD’s, to interpret the accessibility
requirements of the FHA. Of course, in so doing, the Court may find it instructive to hear
what design features have tended to make dwellings accessible in HUD’s experience
enforcing the statute. The Supreme Court explained this type of deference in the seminal
case Um`tea' States v. Mead Corp., 533 U.S. 218 (2001): “[A]gencies charged with
applying a statute necessarily make all sorts of interpretive choices, and while not all of
those choices bind judges to follow them, they certainly may influence courts facing
questions the agencies have already answered. The well-reasoned views of the agencies
implementing a statute constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance.” Ia’. at 227 (alterations and
quotation marks omitted). The HUD Guidelines may, in this way, be a useful summary
of HUD’s relevant experience. A helpful analogy is the way the Govemment may use
the Horizontal Merger Guidelines in antitrust cases in this Circuit. Our Circuit Court has
explained in that context that “[a]lthough the Merger Guidelines are not binding on the
court,” the specific numerical presumptions contained therein “provide a useful
illustration” for the court and could be persuasive insofar as it places the case in context
by relating it to other instances of problematic conduct. FTC v. H.J. Heinz Co., 246 F.3d

708, 716 n.9 (D.C. Cir. 2001) (citation and quotation marks omitted).

 

data) to carry out this subchapter. The Secretary shall give public notice and opportunity for comment
with respect to all rules made under this section.”

Likewise, the Government here may reference the HUD Guidelines in order to
illustrate how designers and builders typically ensure their dwellings are accessible, and
it may put on expert evidence to support that the particular specifications contained in the
HUD Guidelines are in fact necessary to make a building accessible to a handicapped
person. But I decline to adopt the HUD Guidelines, or any other wholesale set of criteria,
as a minimum standard for the Govemment to make out a prima facie case or as the only
sufficient way for Post to rebut a prima facie showing that a dwelling is actually
inaccessible. This conclusion is necessary, in part, because the Government’s own expert
describes that there are certain specifications in the HUD Guidelines that are more
demanding than the equivalent specifications in other safe harbors that HUD has
approved. Expert Report of Peter A. Stratton 4 (“P. Stratton Report”) [Dkt. #91-2]. For
instance, the maximum allowable distance to reach for a light switch is shorter in the
Guidelines than in another safe harbor set of criteria known as the ANSI specifications
Ia’. If it were the Government’s position, then, that Post’s dwellings were inaccessible
due in part to the reach to light switches, evidence as to failing the HUD Guidelines
specification would not presumptively prove that the light switch was actually
inaccessible. But neither can the Court adopt wholesale the ANSI criteria because some
of its specifications are more demanding than the equivalent specifications in the HUD
Guidelines

There is another important obstacle to the Government’s request that the Court
adopt a presumption of inaccessibility from the HUD Guidelines or another set of safe

harbor specifications Indeed, it is in black and white in the text of the FHA. According

7

to the statute, a state or unit of local government may “review and approve newly
constructed covered multifamily dwellings for the purpose of making determinations as
to [accessibility under the FHA’s design and construction requirements]” and compliance
with state or local laws that incorporate the FHA “shall be deemed to satisfy” the FHA’s
design and construction requirements 42 U.S.C. § 3604(f)(5). As a result, the
Govemment must show how the state and local codes failed to ensure compliance with
the FHA before it is entitled to a presumption of inaccessibility for any building that was
in fact permitted and built in a jurisdiction with its own accessibility requirements The
Govemment does not shift the burden of production on any individual building, therefore,
until it explains how the permitting regime for that building did not comply with the FHA
or, if it did comply, how a designer or builder such as Post either evaded the permitting
regime or wrongfully obtained a permit. And again here, the Govemment cannot prove
that a state or local code failed to ensure compliance with the FHA by comparison to the
HUD Guidelines alone. Congress expressed the clear preference that state and local
jurisdictions be allowed to define accessibility in this context and I would review the
exercise of that authority with due deference. l will discuss this requirement in more
detail below when l address which of Post’s buildings the Government may introduce as
evidence in their pattern or practice case.

In sum, the HUD Guidelines do not set a minimum standard for accessibility under
the FHA, whereas compliance with state or local codes could satisfy the FHA. For any
permitted building, therefore, the Govemment must first show the Court that the nature of

the permitting regime leaves room for the allegation that the building is evidence of

8

housing discrimination Assuming there is reason to doubt that a permit ensured
compliance with the FHA, the Government can then meet its burden of production by
putting on evidence as to what design elements in the building are inaccessible. The
Govemment may reference the relevant specification in the HUD Guidelines or any other
safe harbor criteria as persuasive authority, similar to any expert opinion, which will
satisfy its burden of production. But Post may rebut the evidence on any design element
by reference to the specification from any other safe harbor or to the actual ability of
handicapped individuals to effectively use the design element. Accora’ Fair Hous.
Councl'l, Inc. v. Vill. ofOlde Sl. Andrews. Inc., 210 Fed. App’x 469, 482 (6th Cir. 2006).
As is typical, the burden of persuasion remains always with the Govemment-the trier of
fact must ultimately decide if the specification in any safe harbor actually describes what
is necessary for use by handicapped persons

Accordingly, I DENY the request for a legal ruling that the burden-shifting
framework of the Nelson Order applies in this case. I likewise DENY the Government’s
request to find an instance of discrimination under the FHA wherever a Post building
fails to satisfy, wholesale, one of the ten HUD-approved safe-harbors or another
recognized, comparable, objective set of accessibility specifications However, 1 also
reject Post’s contention that such a showing “is not sufficient to meet [the Government’s]
burdens” Mem. of P. & A. ISO Def`s.’ Mot. to Resolve Legal Issues in Advance of Trial

(“Post Mem.”) 4 [Dkt. #90-1]; see also id. at 14-15. The trier of fact may be persuaded

by the Govemment experts’ opinions that non-compliance with the HUD Guidelines
makes a building inaccessible.3

II. The FHA “Features of Adaptive Design” Must Be in Place at the Time of
Construction.

The Govemment asks for a legal ruling to clarify that the FHA requires features of
“adaptive design” to be in place at the time of construction and, accordingly, that Post
cannot put on evidence of its ability to quickly modify buildings to include those features
when necessary or requested. Gov’t’s Mem. 2. As two courts before me have so held,
the plain text of the statute indeed supports the Government’s interpretation. See
Baltimore Nel`ghborhoods, Inc. v. Rommel Builders, Inc., 40 F. Supp. 2d 700, 708 (D.
l\/ld. 1999); Mont. Fair Hous., Inc. v. Am. Capl'tal Dev., Inc., 81 F. Supp. 2d 1057, 1065
(D. Mont. 1999).

The relevant section of the FHA defines discrimination as “the failure to design
and construct” the covered dwellings “in such a manner that . . . all premises . . . contain
the followings features of adaptive design:

(I) an accessible route into and through the dwelling;

(II) light switches, electrical outlets, thermostats, and other environmental

controls in accessible locations;

(IH) reinforcements in bathroom walls to allow later installation of grab bars;

and

(IV) usable kitchens and bathrooms such that an individual in a wheelchair can
maneuver about the space.”

 

3 As to Post’s concerns about the scope of the Govemment expert witnesses’ testimony, see Post Mem.

15-20, the Govemment experts will be appropriately limited from testifying to the ultimate question of

whether non-compliance with the Guidelines is a violation of the FHA or would lead to an enforcement
action before HUD. They can, however, testify to their knowledge and opinion of the Guidelines being
an appropriate metric for accessibility, as described in the FHA.

10

42 U.S.C. § 3604(f)(3)(c)(iii) (emphasis added). Because the statute explicitly
contemplates later installing grab bars but does not mention later installation for other
features, l can rule out Post’s interpretation that it may add the other features on an as-
needed basis

Accordingly, I will not allow Post to advance a theory that it complied with the
design and construction requirements to include the features of adaptive design by being
ready to modify dwelling units to include those features

III. The Govemment Has Failed to Demonstrate That Its Evidence from the
Majority of the 50 Subject Properties Is Relevant to a Pattern or Practice
Claim.

A. Acquired Properties

The parties dispute the relevance of the properties that Post did not design or
construct, but rather acquired. The Government argues that Post is a successor-in-
liability for all the design and construction violations in the acquired properties But that
argument is of no moment in a pattern or practice case. Post had no obligation under the
FHA to inspect or modify acquired properties, nor did it have any obligation to refrain
from purchasing inaccessible properties Accord J.R. Harding v. Orlana’o Apartments,
LLC, 748 F.3d 1128 (l lth Cir. 2014) (explaining the intent of Congress to incentivize the
original designers and builders and holding purchasers have no duty to ensure compliance
with the FHA). Therefore, even if Post could be liable under a successor-in-liability

theory for enforcement actions pertaining to the design and construction of each acquired

property, the fact of acquiring these properties is not probative of whether Post had a

11

standard operating procedure of itself designing and constructing buildings without
respect to the accessibility requirements of the FHA. 4

Accordingly, the Govemment will not be allowed to introduce at trial evidence of
discriminatory design and construction for properties they only acquired: Post Abbey,
Post Gallery, Post Heights, Post Square, Post Vineyard, Post Vintage, and Post
Worthington.

B. Properties Licensed Under State and Local Codes T hat Incorporate the FHA

As discussed at pages 7-8 above, Congress invited local jurisdictions to define, in
their laws or building codes, a set of criteria that makes precise the broader FHA
accessibility requirements 42 U.S.C. § 3604(f)(5). Because the FHA provides that
satisfying such state or local building codes “shall be deemed to satisfy” the FHA
accessibility requirements 42 U.S.C. § 3604(f)(5), Post may have had a bona fide belief
that it had satisfied the FHA requirements by obtaining permits and certificates of

occupancy for its buildings in jurisdictions that incorporated the FHA. There is no

 

4 The Government concedes that Post was not involved in the design and construction of five of the ten
acquired properties (Post Abbey, Post Square, Post Vineyard, Post Vintage, and Post Worthington), but
asserts that Post was “directly involved in the design or construction” of five others (Post Coles Comer,
Post Gallery, Post Heights, Post Addison Circle, and Post Uptown Village Phase ll). U.S.’s Opp’n to
Defs.’ Mot. (“Gov’t’s Opp’n”) 22 [Dkt. #94]. Though Post denies that assertion, the Govemment points
to some evidence from people with knowledge of the design and construction process for (l) Post Coles
Comer, (2) Post Addison Circle, and (3) Post Uptown Village Phase ll. See i`a'. at 23 & n.6; see also
Def`s.’ Resps. & Objections to Pl.’s Second Set of lnterrogs. 6-7 [Dkt. #92-6]. The Govemment may
therefore use evidence of Post’s involvement in the design and construction of those three acquired
properties For Post Gallery and Post Heights, on the other hand, l reject the argument that Post was
involved in their design and construction By way of support, the Government offers only that those
properties did not receive certificates of occupancy until after Post acquired them. lt is too tenuous to
infer that design and constmction occurs up until a certificate of occupancy is issued. Moreover, Post
specifically denied being involved in the design and construction of those properties Defs.’ Resps. &
Objections to Pl.’s Second Set of lnterrogs. 6-7.

12

dispute that Post obtained the necessary permits for each of its buildings, but if these
permits should not create a presumption of compliance, the Government has not
presented evidence as to why. To the contrary, the Government admits that the state laws
of North Carolina, Georgia, and Virginia (after the year 2000) incorporate the Fair
Housing Act requirements into their building codes See Errata to the U.S.’ Args. to the
Court at the Mots. Hearing Held on July 11, 2016, at 2 [Dkt. #105].

lnstead of explaining the permitting schemes under which the Post buildings were
designed and built, the Government argues that it should be able to use evidence from
permitted buildings to support its pattern or practice claim by pointing to paragraph
(f)(6)(B) of §3604, which states “Determinations by a State or a unit of general local
government shall not be conclusive in enforcement proceedings under this
subchapter.” But this is not an enforcement proceeding in which the Court is merely
determining whether a particular construction design meets the standard for accessibility
under the FHA. Rather, the Government’s allegation is that Post flouted the FHA
requirements as a standard operating procedure. But it is not reasonable to conclude that
Post disregarded the FHA if it attempted to comply with a safe harbor by resting on the
state and local codes, regardless whether those codes turn out to be too lax. Because the
Govemment may not rely on evidence from buildings for which Post had a permit and a
bona fide belief that the permit ensured compliance with the FHA, l will exclude from
evidence each permitted building where nothing in the record would challenge this bona
fide belief. l will now turn to evaluating the evidence in the record and on the books for

each relevant jurisdiction:

13

i. Georgia Properties

Although the parties dispute the exact date range in which the Georgia properties
were designed and constructed, neither party argues that any of the properties were built
and permitted before 1987, when Georgia appears to have adopted a permitting process
consistent with satisfying the FHA. See Defs.’ Reply to U.S.’s Resp. to Defs.’ Statement
of Material Facts (“Material Facts”) 1111 5-7, at 3-5 [Dkt. #73-1]. Georgia state law
requires that all “facilities receiving permits for construction or renovation” built between
1987 and 1995 must “comply with the American National Standards lnstitute
specifications A117.1-1986” and all of those built after 1995 must comply with the Fire
Safety Commissioner’s “rules and regulations” establishing “minimum state standards for
accessibility.” Ga. Code Ann. § 30-3-3. lt appears those minimum standards Were
promulgated as the Georgia Accessibility Code, various editions of which are available at
https://ada.georgia.gov/georgia-accessibility-code.

The Georgia Accessibility Code also instructs the permitting authorities to enforce
the code’s requirements by issuing building permits only to those projects with plans that
meet with the requirements of the Code. See Ga. Accessibility Code 120-3-20.02(3).

The substantive requirements for multifamily dwellings are enumerated in detail at Ga.
Accessibility Code 120-3-20.54. The Government’s own expert conceded that the
specifications were based on ANSI 117.1-1986 and thus operationalized the requirements
of the F air Housing Act. Expert Report of Kenneth M. Schoonover (“Schoonover
Report”) 16 [Dkt. #92-3]. Post is therefore entitled to a presumption at the outset of the

Government’s case that its buildings permitted in Georgia were designed and built in

14

compliance with the FHA. Unless the Government can show how the Georgia permitting
process was defective at certifying compliance with its own code, or otherwise
demonstrate that Georgia’s stamp of approval is not synonymous with meeting the
requirements under the FHA, it has not met its burden under the statute to show that the
design and construction of those buildings was discriminatory or in any way relevant to
its pattern or practice case.

ln a convoluted bit of logic, the Government’s expert concludes that the buildings
constructed in Georgia must not have met the Georgia codes, even though they were
ostensibly permitted by the Georgia authorities, because they do not satisfy the HUD
Guidelines Ia'. But, as should be abundantly clear by now, the HUD Guidelines are not
the minimum specifications required by the FHA and the Govemment points to no
evidence that satisfying the Georgia Accessibility Code would necessarily entail
satisfying the HUD Guidelines Whether the buildings satisfy the HUD Guidelines is of
no moment and it is fair to assume until the Govemment shows otherwise that the
Georgia buildings, which neither party disputes were in fact permitted, satisfied the
Georgia Accessibility Code and, thus, the FHA.

Therefore, l will exclude any testimony as to the Georgia buildings for the purpose
of proving that Post is liable for a pattern or practice of discrimination under the FHA.
As l read the Complaint, the buildings to be excluded from evidence are Post Alexander,
Post Biltmore, Post Briarcliff, Post Brookhaven, Post Collier Hills, Post Crest, Post
Crossing, Post Dunwoody, Post Gardens, Post Glen, Post Lenox Park, Post Lindbergh,

Post Oglethorpe, Post Parkside, Post Peachtree Hills, Post Renaissance, Post Ridge, Post

15

Riverside, Post Stratford (all located in Atlanta, Georgia), and Post Stratford (in Smyma,
Georgia).
ii. North Carolina Properties

As in Georgia, the law in North Carolina calls for state building inspectors to issue
permits and certificates of “compliance” or occupancy only if a building meets with the
North Carolina Building Code. See N.C.G.S. §§ 160A_411 to -425; se_e also Lynn v.
Overlook Dev., 403 S.E.2d 469 (N.C. 1991) (describing the duties of the local authorities
in the permitting process as of the late 19803). lt is not obvious to the Court when the
North Carolina Building Code began incorporating the requirements of the FHA, but it is
at least clear that the code has incorporated accessibility requirements since 1991.5
Moreover, the Government’s expert admitted that the North Carolina Accessibility Code
applicable in 2002, when the Post Gateway Place was designed and constructed for first
occupancy, did incorporate specifications that satisfied the FHA. Material Facts 11 6 (Post
Gateway Place designed and constructed for first occupancy in 2002); Schoonover
Report 16 (in considering whether Post Gateway Place met with the applicable
accessibility code, Schoonover notes that its “technical requirements mirror the
Guidelines”). lt therefore appears that the building permits issued in North Carolina

create a presumption of satisfying the FHA. Unless the Govemment can put forward

 

5 See North Carolina Dep’t of lnsurance, Office of the State Fire Marshall, Engineering and Codes, State
Building Codes, http://www.ncdoi.com/OSFM/Engineering_and_Codestefault.aspx?fieldl=Codes_-
_l991&user=State_Building_Codes; 1991 Ed. of North Carolina State Building Code,
http://www.ncdoi.com/OSFM/Engineering_and*Codes/Documents/State_Building_Codes/PastCodes/199
l/l 991%20with%20Revisions%20Thru%201995.pdf.

16

contrary evidence, it will therefore not be allowed to use Post’s North Carolina properties
to make its case of a pattern or practice of discrimination

As l read the Complaint and the parties’ submissions as to the undisputed material
facts in the case, the buildings to be excluded from evidence on this conclusion are Post
Ballantyne (certified in 2006), Post Gateway Place (certified in 2002), Post Park at
Phillips Place (certified in 1997)6, and Post Uptown Place (certified in 2002), which are
all located in Charlotte, North Carolina.

iii. New York Properties

Post Luminaria and Post Toscana are the only New York properties the
Govemment seeks to introduce. Compl. 11 5. The Government’s expert seems to have
conceded that the Post Luminaria, at least, was permitted according to New York Local
Law 58, Schoonover Report 16-17, which law appears to have created accessibility
requirements for the local code in 1987.7 The Govemment expert’s only basis for
discounting compliance with New York law is that the accessibility requirements of
Local Law 58 are less restrictive than the HUD Guidelines See Schoonover Report 16-
17. But, as with Georgia, the Guidelines are not the minimum standard for accessibility
and satisfying the specifications in the local code can be enough. Moreover, the expert

report indicates New York’s specifications are based on the ANSI standards, see

 

6 Unlike with the properties certified in 2002 and later, it is unclear to the Court if the North Carolina
Building Code incorporated a threshold level of accessibility specifications in 1997, when Post Park at
Phillips Place was permitted But as the burden is with the Govemment to demonstrate the relevance of
its evidence7 the property will be excluded until the Government makes a showing that the permitting
scheme in place in 1997 was deficient

7 See Local Laws ofthe City ofNew York for the Year 1987, No. 58,
http://www.nyc.gov/html/mopd/downloads/pdf/local_law58.pdf.

17

Schoonover Report 17, which is another safe harbor that the statute specifically approves,
42 U.S.C. § 3604(f)(4).

There does appear to be one way in which New York’s local code falls short of the
federal standard under the FHA, but it is irrelevant here. As the Government’s expert
indicates, the New York law may require fewer dwelling units in non-elevator buildings
to be compliant than is required by the FHA, see Schoonover Report 17. However, the
Govemment represents that the Post Luminaria and the Post Toscana are elevator
buildings, making the non-elevator provision unrelated to the permitting of these two
buildings See U.S.’s Statement of Undisputed Material F acts lSO lts Motion for
Summary Judgment 1111 62 & 129 [Dkt. # 63-2]. Accordingly, the Govemment will not be
allowed to introduce evidence of the Post Luminaria or Post Toscana at trial unless it can
show some defect in the permitting process as to those buildings

iv. Florida Properties

All the Florida properties will be allowed into evidence because the Govemment
has put forward what seems to be an undisputed account that the Florida Accessibility
Code “contains no comprehensive technical requirements” and that Florida law merely
repeats in general terms the FHA’s accessibility requirements See Schoonover Report
18. As such, there is at least an initial showing by the Government that Florida’s
permitting process, whatever it might be, is not calculated to ensure accessibility that

satisfies the FHA. Post may present evidence to the contrary at trial.

18

v. Virginia Properties

The Government has submitted evidence that, before 2000, the Virginia Uniform
Statewide Building Code explicitly adopted the HUD Guidelines as its set of accessibility
specifications Schoonover Report 18. For these properties, then, the Government’s
evidence of non-compliance with the Guidelines would rebut the presumption of
complying with state and local codes Conversely, for properties permitted after 2000,
the Virginia code incorporated the accessibility specifications from the lnternational
Building Code 2000, with the 2001 supplement (hereinafter “lBC-2000”). Id. Therefore,
the Govemment can rebut the presumption of satisfying the state and local codes for
these properties only by showing non-compliance with the lBC-2000, or some direct
evidence of obtaining the permits erroneously. lt appears that the Govemment did study
the Pentagon Row for non-compliance with the lBC- 2000 (and with all other safe
harbors), P. Stratton Report 9-11, but there is no such evidence as to the rest of the
Virginia properties Accordingly, l will allow evidence as to Pentagon Row if it shows
non-compliance with the lBC-2000, but l will exclude all the other Virginia properties
that were designed and constructed for first occupancy after 2000.

As l read the Complaint and material facts, those Virginia properties that will not

be admissible evidence of a pattern or practice of discrimination are Post Carlyle Square

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and Post Carlyle Square Condos. Both properties are located in Alexandria, VA and
were certified after 2005. Compl. 11 5; Material Facts 11 6.8
vi. District of Columbia Properties
Post Massachusetts Avenue in the District of Columbia is one of the twelve
properties that the Govemment inspected pursuant to the October 31, 2012 .loint Status
Report [Dkt. #38] and the December 14, 2012 Scheduling Order [Dkt. #43]. Post
effectively conceded through its responses to interrogatories that there was no local code
applicable to the Post Massachusetts Avenue that would have brought it within the
requirements of the FHA. See Defs.’ Third Supp. Resps. & Objections to Pl.’s First Set
of lnterrogs., at App. 5033 & Ex. A [Dkt. #67-23]; Schoonover Report 15-20 (discussing
the subset of properties for which Post did claim that local codes satisfied the FHA).
Accordingly, l will allow evidence from Post Massachusetts Avenue.
vii. Texas Properties
The Court is unaware of any attempt by the Government to show why state or
local permitting in Texas did not satisfy the FHA with respect to the Post buildings there.
Post put the Government on notice of the local codes theory for its Texas buildings See
e.g., Defs.’ Third Supp. Resps. & Objections to Pl.’s First Set of lnterrogs., at App. 5040
(“Meeting agendas and reports show that, during the design and construction process,

lnspec conducted a review of Addison Circle for compliance with the Texas Accessibility

 

8 The only remaining Virginia property (besides Post Pentagon Row) is Post Comers, located in
Centreville, Virginia. Post admits that property was designed before 1991, making the 2000 code
inapplicable, and hence making the property admissible Material Facts 11 5.

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Standards”); Ia’. at App. 5081-86 (table of buildings indicating local codes as an objective
standard on which compliance with the FHA requirements was based); Defs.’ Resp. to
Pl.’s Statement of Undisputed Material Facts 11 19 [Dkt. #67-1] (“ln Texas, project plans
would be reviewed by the State of Texas to make sure that it was designed to meet the
state accessibility requirements [T]he government failed to conduct] any analysis of
whether properties met state codes.”); see also Defs.’ Resp. to Pl.’s Errata 2 [Dkt. #106].
The Government did not elect to inspect any of the Texas buildings See Joint Status
Report [Dkt. #38]. Therefore, l will consider deficient the Government’s prima facie
evidence as to the Texas buildings

C. Properties the Govemment Did Not Inspecl

Post argues that the Government has no expert testimony with regard to the
accessibility conditions at thirteen properties, see Post Mem. 23 (1isting properties), and
therefore any mention of these properties should be excluded from trial. But the
Govemment does have evidence of the measurements of features in those properties See
Gov’t’s Opp’n 25-26. lt may also be able to introduce evidence of citizen or tester
complaints See ia’. If the Govemment is able to establish through experts what
specifications make a dwelling unit inaccessible, then its evidence of these thirteen
properties falling short of those specifications could be probative of discrimination even

though an expert might not testify to his or her conclusions about the property.

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Therefore, these thirteen properties will not be excluded from evidence on this basis
alone.9

D. Properties Allowed to Be Introduced At Trial

To summarize the above, the Government has not met its burden to show why 42
of the 50 subject properties named in the Complaint are relevant to the pattern or practice

claim. The remaining properties the Govemment may introduce evidence at trial are:

p_¢

. Post Corners (Centreville, VA)

2. Post Harbour Place (Tampa, FL)

3. Post Harbour Place City Homes (Tampa, FL)
4. Post Hyde Park (Tampa, FL)

5. Post Massachusetts Avenue (Washington, DC)
6. Post Parkside (Orlando, FL)

7. Post Pentagon Row (Arlington, VA)

8. Post Rocky Point (Tampa, FL)

IV. Conclusion
For all of the foregoing reasons, the Govemment will be limited to supporting its
pattern or practice claim at trial with evidence from the eight properties listed above, lt
will be allowed to introduce evidence of the allegedly deficient design features in those

buildings by reference to the specifications in the HUD Guidelines, or other safe harbor

 

9 Note that, by my observation it is only Post Corners and Post Hyde Park among these thirteen that are
not excluded on other grounds

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specifications lt will not be allowed to have experts testify as to whether failing the
HUD Guidelines would result in a rebuttable presumption or a finding of liability in an
enforcement action before HUD.

Post will then be allowed to put on evidence of safe harbor specifications or state
and local codes that those challenged design features satisfied. lt may also show that
handicapped persons could actually access and use those design features Post will not be
allowed to argue or put on evidence to support the argument that the challenged
properties could quickly “adapt” to become accessible.

Both sides will also be allowed to put on evidence of Post’s decision-making
process when designing and constructing any buildings in the relevant period.

An order consistent with this decision accompanies this Memorandum Opinion.

  

   

RICHARDJ LE N
United States

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