Washington Law Review


The Fair Housing Act (FHA or the Act) sets forth accessibility requirements that housing developers must meet, but the Act does not contain objective performance standards for satisfying those requirements. This omission creates substantial barriers in housing opportunities for persons with disabilities. For example, the FHA mandates that doors must be wide enough to allow passage of wheelchair users, but it does not provide measurements for door width. The United States Department of Housing and Urban Development (HUD) has attempted to use ten model building codes or “safe harbors” from its regulations as minimal objective standards for accessibility. HUD and the Department of Justice (DOJ) contend that developers must either adopt a safe harbor or show that they followed some comparable objective building standard. However, housing developers continue to build inaccessible housing, arguing that the FHA contains no performance standards and that HUD does not have the authority to proscribe such standards. Some jurisdictions have agreed with HUD’s position, holding that a developer’s failure to adopt a safe harbor establishes a prima facie case for disability discrimination that may be overcome if the developer shows that it followed some comparable objective standard. Other jurisdictions have sided with developers, holding that the FHA does not require developers to build by any objective standard but, rather, gives developers the freedom to argue that their design and construction conform with the FHA’s general accessibility requirements. In turn, developers often hire experts who—without reference to any objective standard—conclude that the units are accessible under the FHA. As a result, accessibility becomes a matter of opinion. When courts do not recognize minimal standards for accessibility in housing, persons with disabilities, developers, and the government all pay a price. Developers will continue to build housing that is inaccessible to persons with disabilities, re-litigating the same question about accessibility, which is costly to both the government and developers. This Comment argues that objective standards would safeguard the rights of persons with disabilities under the FHA, put developers on notice that they must build by an objective standard, and preserve the government’s litigation resources. Courts should recognize that HUD’s regulations establish minimal accessibility standards, deserve judicial deference under established administrative law principles, and effectuate Congress’s intent to eliminate barriers to equal housing opportunities for persons with disabilities.

First Page