24 CFR Part 100—Fair Housing Accessibility Guidelines, Preamble

Conflict with Local Accessibility Codes

Comment. Several commenters inquired about the appropriate course of action to follow when confronted with a conflict between the Act's accessibility requirements and local accessibility requirements.

Response. Section 100.205(i) of the Fair Housing regulations implements Section 804(f)(8) of the Act, which provides that the Act's accessibility requirements do not supplant or replace State or local laws that impose higher accessibility standards (53 FR 45005). For accessibility standards, as for other code requirements, the governing principle to follow when Federal and State (or local) codes differ is that the more stringent requirement applies.

This principle is equally applicable when multifamily dwellings are subject to more than one Federal law requiring accessibility for persons with physical disabilities. For example, a multifamily dwelling may be subject both to the Fair Housing Amendments Act and to Section 504 of the Rehabilitation Act of 1973. Section 504 requires that 5% of units in a covered multifamily dwelling be fully accessible -- thus imposing a stricter accessibility standard for those units than would be imposed by the Fair Housing Act. However, compliance only with the Section 504 requirements would not satisfy the requirements of the Fair Housing Act. The remaining units in the covered multifamily dwelling would be required to meet the specific accessibility requirements of the Fair Housing Act.

Comment. One commenter, the Seattle Department of Construction and Land Use, presented an example of how a local accessibility code that is more stringent with respect to some accessibility provisions may interact with the Act's accessibility requirements, where they are more stringent with respect to other provisions. The commenter pointed out that the State of Washington is very hilly, and that the State of Washington's accessibility code requires accessible buildings on sites that would be deemed impractical under the Option One guidelines. The commenter stated that the State of Washington's accessibility code may require installation of a ramp, and that the ramp may then create an accessible entrance for the ground floor, making it subject to the Act's accessibility requirements. The commenter asked that, since the project was not initially subject to the Act's requirements, whether the creation of an accessible ground floor in accordance with the State code provisions would require all units on the ground floor to be made accessible in accordance with the Fair Housing Act. (The State of Washington's accessibility code would require only a percentage of the units to be accessible.)

Response. The answer to the commenter's question is that a nonelevator building with an accessible entrance on an accessible route is required to have the ground floor units designed and constructed in compliance with the Act's accessibility requirements. This response is consistent with the principle that the stricter accessibility requirement applies.