Last month, the apartment industry scored what the National Multi Housing Council terms a “significant victory” as a judge rejected a Justice Department (DOJ) request for summary judgment in a case filed against Dallas-based JPI Apartment Construction.

The DOJ’s lawsuit against JPI alleges a pattern of failing to comply with the accessibility requirements of the Fair Housing Act and the Americans with Disabilities Act. The rejection of the request for summary judgment, in which the court determines there are no facts in dispute and the court can rule on everything as a matter of law, doesn’t give JPI an outright victory but helps bolster the multifamily industry’s claim that following standards approved by the federal government isn’t the only way to design and construct properties that meet accessibility regulations.

“By denying summary judgment, the court held there were facts in dispute,” says Christopher Hanback, a partner in the Washington, D.C., office of the Holland & Knight law firm. “The government’s whole case was premised on the fact that they were going to win on summary judgment. They would come to the court and say, 'We established guidelines, and they’ve not been following [them].' End of question. We win.”

The team at Holland & Knight that defended JPI argued that there are other ways to meet accessibility requirements and that failure to meet the standards favored by the U.S. does not constitute unlawful discrimination. 

“We think that the decision is huge, not only for JPI, but also for the industry in that the court has expressly rejected the Justice Department’s and HUD’s notion that following the HUD guidelines or the safe harbors is mandatory to demonstrate compliance with the Fair Housing Act and the ADA,” Hanback says. “Many of those things [DOJ is arguing] are half-inch measurements and [entail] trying to contend that when a slope is 6 percent instead of 5 percent, it’s a violation.”

Hanback says that in past cases, apartment firms have often challenged the guidelines but in the process have not proved that their apartments are accessible. When that approach hasn’t worked, they've ended up settling. JPI's experts attempted to get past this hurdle when they used videotape to try to demonstrate that people in wheelchairs could use the properties even if they didn’t fit within the safe harbors. For instance, Hanback says that the experts contended that there need not be a 5 percent running slope and 2 percent cross slope on paths in order for people in wheelchairs to be able to use the pass comfortably. They also argued that toilets in bathrooms don’t have to be centerlined 16 inches from the walls, among other points.

“The experts [produced] strong evidence in the discovery phase that [JPI's] properties are in fact accessible to persons with disabilities, even though they don’t comply with particular provisions of the guidelines,” Hanback says.

While Hanback says getting summary judgment was an important first step, others think the industry shouldn’t be declaring victory quite yet. The district judge still has the ability to change the order or issue an entirely different one. Hanback says the DOJ could raise evidentiary issues or question the qualifications of the experts, but he doesn’t anticipate that being a problem.

Hanback says internal legal steps need to be affirmed at the district-court level and then the case will be assigned a trial date in the next month. “We’re looking forward to going forward and putting on our case before a jury and taking it to the next step of proving that JPI has complied with the requirements of the Fair Housing Act,” he says.