Site Impracticality Determinations.
The Guidelines for Requirement 1 begin by presenting criteria for determining when terrain or unusual site characteristics would make an accessible entrance impractical. Section 100.205(a) recognizes that certain sites may have characteristics that make it impractical to provide an accessible route to a multifamily dwelling. This section states that all covered multifamily dwellings shall be designed and constructed to have at least one building entrance on an accessible route unless it is impractical to do so because of the terrain or unusual characteristics of the site.
Comments. The Department received many comments on the site impracticality specifications presented in the proposed guidelines (55 FR 24377- 24378). The majority of the members of the disability community who commented on this issue supported the Option One guidelines, and recommended no change. However, other commenters, including a few disability organizations, members of the building industry, State and local government agencies involved in the development and enforcement of accessibility codes, and some of the major building code organizations, criticized one or more aspects of the Option One and Option Two guidelines for Requirement 1. Specific comments are noted below.
A few commenters suggested that the 10% slope criterion was too low, and easily will be met by a project site having a hilly terrain which could (and typically would) be made more level. These commenters recommended a higher slope criterion ranging anywhere from 12% to 30%. Other commenters stated that the slope criterion for the planned finished grade should not exceed 8.33%. The Congressional sponsors of the Act (U.S. Representatives Edwards, Fish, and Frank) stated that a limited exemption for slopes greater than 10% "was not contemplated by the Act"; but that they believed the Department has the discretion to develop such an exemption if it is "carefully crafted and narrowly tailored".
Several commenters stated that any evaluation of the undisturbed site should be done only on the percentage of land that is buildable. Several commenters stated that the final Guidelines should not require an evaluation of the undisturbed site between the planned entrance and the arrival points—that the only evaluation of the undisturbed site should be the initial threshold slope analysis.
There were a number of questions on arrival points, and requests that these points be more clearly defined. Several commenters presented specific examples of possible problems with the use of arrival points, as specified in the Option One guidelines. A few commenters stated that the individual building analysis should involve a measurement between the entrance and only one designated vehicular or pedestrian arrival point.
Other commenters stated that single buildings on a site should be subject to the same analysis as multiple buildings on a site.
A number of commenters criticized the Option One site impracticality analysis as being too cumbersome and confusing. A number of commenters objected to Option Two's requirement that covered multifamily dwellings with elevators must comply with the Act's accessibility requirements, regardless of site conditions or terrain.
Response. Following careful consideration of these comments, the Department has revised significantly the procedure for determining site impracticality, and its application to covered multifamily dwellings.
For covered multifamily dwellings with elevators, the final Guidelines would not exempt these dwellings from the Act's accessibility requirements. The final Guidelines provide that covered multifamily dwellings with elevators shall be designed and constructed to provide at least one accessible entrance on an accessible route regardless of terrain or unusual characteristics of the site. Every dwelling unit on a floor served by an elevator must be on an accessible route, and must be made accessible in accordance with the Act's requirements for covered dwelling units. The Department has excluded elevator buildings from any exemption from the Act's accessibility requirements because the Department believes that the type of site work that is performed in connection with the construction of a high rise elevator building generally results in a finished grade that would make the building accessible. The Department also notes that the majority of elevator buildings are designed with a primary building entrance and a passenger drop-off area which are easily made accessible to Individuals with handicaps. Additionally, many elevator buildings have large, relatively level areas adjacent to the building entrances, which are normally provided for moving vans. These factors lead the Department to conclude that site impracticality considerations should not apply to multifamily elevator buildings.
For covered multifamily dwellings without elevators, the final Guidelines provide two alternative tests for determining site impracticality due to terrain. The first test is an individual building test which involves a two-step process: measurement of the slope of the undisturbed site between the planned entrance and all vehicular or pedestrian arrival points; and measurement of the slope of the planned finished grade between the entrance and all vehicular or pedestrian arrival points. The second test is a site analysis test which involves an analysis of the topography of the existing natural terrain.
A site with a single building, having a common entrance for all units, may be analyzed only under the first test—the individual building test.
All other sites, including a site with a single building having multiple entrances serving either individual dwelling units or clusters of dwelling units, may he analyzed either under the first test or the second test. For these sites for which either test is applicable, the final Guidelines provide that regardless of which test is utilized by a builder or developer, at least 20% of the total ground floor units in nonelevator buildings, on any site, must comply with the Act's accessibility requirements.
The distinctive features of the two tests for determining site impracticality due to terrain, for nonelevator multifamily dwellings, are as follows:
1. The individual building test.
a. This test is applicable to all sites.
b. This test eliminates the slope analysis of the entire undisturbed site that was applicable only to multiple building sites, and, concomitantly, the table that specifies the minimum percentage of adaptable units required for every multiple building site. The only analysis for site impracticality will be the individual building analysis. This analysis will be applied to each building regardless of the number of buildings on the site.
c. The individual building analysis has been modified to provide for measurement of the slopes between the planned entrance and all vehicular or pedestrian arrival points within 50 feet of the planned entrance. The analysis further provides that if there are no vehicular or pedestrian arrival points within 50 feet of the planned entrance, then measurement will be made of the slope between the planned entrance and the closest vehicular or pedestrian arrival point. Additionally, the final Guidelines clarify how to measure the slope between the planned entrance and an arrival point
d. The individual building analysis retains the evaluation of both the undisturbed site and the planned finished grade. Buildings would be exempt only if the slopes of both the original undisturbed site and the planned finished grade exceed 10 percent (1) as measured between the planned entrance and all vehicular or pedestrian arrival points within 50 feet of the planned entrance; or (2) if there are no vehicular or pedestrian arrival points within that 50 foot area, as measured between the planned entrance and the closest vehicular or pedestrian arrival point.
2. The site analysis test.
a. This test is only applicable to sites with multiple buildings, or to sites with a single building with multiple entrances.
b. This test involves an analysis of the existing natural terrain (before grading) of the buildable area of the site by topographic survey with 2 foot contour intervals, with slope determination made between each successive contour interval. The accuracy of the slope analysis is to be certified by a professional licensed engineer. landscape architect, architect or surveyor.
c. This test provides that the minimum number of ground floor units to be made accessible on a site must equal the percentage of the total buildable area (excluding floodplains, wetlands, or other restricted use areas) of the undisturbed site that has an existing natural grade of less than 10% slope.
The Department believes that both tests for determining site impracticality due to terrain present enforceable criteria for determining when terrain makes accessibility, as required by the Act, impractical. The Department also believes that by offering a choice of tests, the Department is providing builders and developers with greater flexibility in selecting the approach that is most appropriate, or least burdensome, for their development project, while assuring that accessible units are provided on every site. As noted earlier in this preamble, this policy is consistent with the intent of Congress which was to encourage creativity and flexibility in meeting the Act's requirements, and thus minimize the impact of these requirements on housing affordability.
With respect to determining site impracticality due to unusual characteristics of the site, the test in the final Guidelines is essentially the same as that provided in the Option One guidelines. This test has been modified to limit measurement of the finished grade elevation to that between the entrance and all vehicular or pedestrian arrival points within 50 feet of the planned entrance.
Finally, the final Guidelines for Requirement 1 contemplate that the site tests recommended by the Guidelines will be performed, generally, on "normal" soil. The Department solicits additional public comment only on the issue of the feasibility of the site tests on areas that have difficult soil, such as areas where expansive clay or hard granite is prevalent.
Additional specific comments on the site impracticality determination are as follows:
Comment. One commenter stated that the site impracticality determination seems to suggest that only the most direct path from the pedestrian or vehicular arrival points will be used to evaluate the ability to create an accessible route of travel to the building. The commenter stated that it may be possible to use natural or finished contours of the site to provide an accessible route other than a straightline route.
Response. To be enforceable, the Guidelines must specify where the line is drawn; otherwise it is not possible to specify what is "practical". Generally, developers provide relatively direct access from the entrance to the pedestrian and vehicular arrival points. lf, in fact, the route as built was accessible, then the building would be expected to have an accessible entrance and otherwise comply with the Act.
Comment. Another commenter stated that the site impracticality determination does not take into account the many building types and unit arrangements. The commenter stated that some buildings have a common entrance with unit entrances off a common corridor, while others have individual, exterior entrances to the units. The commenter stated that if the Department is going to permit exemptions from the Act's requirements caused by terrain, the commenter did not understand why every entrance in a building containing individually accessed apartments must comply with the Act's requirements, simply because they are in one building.
Response. The final Guidelines recognize (as did the proposed guidelines) the difference in building types. If there is a single entry point serving the entire building (or portions thereof), that entry point is considered the "entrance". If each unit has a separate exterior entrance, then each entrance is to be evaluated for the conditions at that entrance. Thus, a building with four entrances, each serving one of four units, might have only one accessible entrance, depending upon site conditions, or it might have any combination up to four.
Comment. Another commenter stated that the evaluation for unusual characteristics of the site only takes into account floodplains or high hazard coastal areas, and excludes other possible unique and unusual site characteristics.
Response. The provision for unusual characteristics of the site clearly provides that floodplains or high hazard coastal areas are only two examples of unusual site characteristics. The provision states that "unusual site characteristics" includes "sites subject to similar requirements of law or code."
Comment. A number of commenters expressed concern that the site impracticality determination of the Guidelines may conflict with local health, safety, environmental or zoning codes. A principal concern of one of the commenters was that the final Guidelines may require "massive grading" of a site in order to achieve compliance with the Act. The commenter was concerned that such grading may conflict with local laws directed at minimizing environmental damage, or with zoning codes that severely limit substantial fill activities at a site.
Response. The Department believes that the site impracticality determination adopted in these final Guidelines will not conflict with local safety, health, environmental or zoning codes. The final Guidelines provide, as did the proposed guidelines, that the site planning involves consideration of all State and local requirements to which a site is subject, such as "density constraints, tree-save or wetlands ordinances and other factors impacting development choices" (55 FR 24378), and explicitly accept the site plan that results from balancing these and other factors affecting the development. The Guidelines would not require, for example, that a site be graded in violation of a tree-save ordinance. If, however, access is required based on the final site plan, then installation of a ramp for access, rather than grading, could be necessary in some cases so as not to disturb the trees. Where access is required, the method of providing access, whether grading or a ramp, will be decided by the developer, based on local ordinances and codes, and on business or aesthetic factors. It should be noted that these nonmandatory Guidelines do not purport to preempt conflicting State or local laws. However, where a State or local law contradicts a specification in the Guidelines, a builder must seek other reasonable cost effective means, consistent with local law, to assure the accessibility of his or her units. The accessibility requirements of the Fair Housing Act remain applicable, and State and local laws must be in accord with those requirements.
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