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Community Access Project re Wayne Apartments Project May 2012
Community Access Project re Wayne Apartments Project May 2012
Community Access Project re Wayne Apartments Project May 2012
Community Access Project re Wayne Apartments Project May 2012
Community Access Project re Wayne Apartments Project May 2012
Community Access Project re Wayne Apartments Project May 2012
Community Access Project re Wayne Apartments Project May 2012
Community Access Project re Wayne Apartments Project May 2012
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Community Access Project re Wayne Apartments Project May 2012

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The Community Access Project, Somerville and the Boston Center for Independent Living have a partnership in analyzing and advocating for maximal accessibility in all public buildings, including …

The Community Access Project, Somerville and the Boston Center for Independent Living have a partnership in analyzing and advocating for maximal accessibility in all public buildings, including residential project, in the Greater Boston area. this project involves 349 units located within Roxbury, Dorchester and Mattapan.

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  • 1. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locationsMay 9, 2012FROM: Boston Center For Independent Living and Community Access ProjectKaren Schneiderman, Senior Advocacy Specialist Eileen Feldman, Director60 Temple Place P.O. Box 434Boston, MA 02111 Somerville, MA 02143TO: MA Architectural Access BoardThomas Hopkins, Executive DirectorDonald Lang, ChairOne Ashburton Place - Room 1310Boston, MA 02108RE: Public Comments on V12-102, Wayne Apartments Project/Wayne Apartments Project LPOne John Eliot SquareRoxbury, MA 02119Dear AAB Board and Staff,The Boston Center for Independent Living and the Community Access Project have a partnership inreviewing, analyzing and providing comments and recommendations regarding architectural accessibilitytopics impacting the Greater Boston area. We submit the following recommendations regarding AABDocket #V12-102 for the Wayne Apartments Project for the Boards review and for inclusion in the Hearingpacket and administrative file on this docket.Bottom line on top: Please continue the Variance for 3.3/3.3.1/3.3.2. Please deny the Variance for 9.4.1.Please continue the Variances for 9.4, 9.4.2 and 10.1.We recommend that the MAAB require the Applicant to o submit additional and substantive information, including detailed architectural reviews and costestimates regarding "Unfeasibility/Cost Required" for each of the site locationsin this portfolio that contain10 or more units (18 out of the 26 sites) o submit information showing how maximum feasible accessibility in all public and commonareas (including accessible routes), plus 5% Group 2A units at each of these sites can be achieved by theconclusion of this 5-phase rehabilitation project. o submit evaluations for all buildings that are currently listed as containing "HP and "HI" units.The Board can consider an application for a variance from the 5% rule if the applicant can demonstratewith reasonable certainty that there is a lesser need for Group 2A units in the locations in question. In thiscase, the municipalities are: Roxbury, Dorchester and Mattapan. The fact is that there is an urgent need foraccessible housing in the Greater Boston area.Here is the written testimony of Bill Henning, Executive Director, Boston Center for Independent Living:“The biggest need of people contacting BCIL for services is for affordable and accessible housing. Duringthe year we will directly assist approximately fifty people to find housing, and many others, perhapshundreds, will be indirectly assisted. There remains a severe shortage of affordable, accessible, andintegrated units in the city and surrounding communities. One serious result is that people live ininaccessible units, perhaps having to use a portable commode or not being able to simply enter and exittheir unit at their convenience as most everyone else does because of the lack of a ramp or elevator.Currently we are working with sixty people who wish to reside in the community but who are stuck in page 1 of 8
  • 2. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locationsnursing homes, and far and away the biggest barrier to getting out is adequate housing—there are ampleservices at this time— something reported by all independent living centers and elder services programs.”-Bill Henning, Executive Director of the Boston Center for Independent Living. May 8, 2012.1This project, although listed as a Mod Rehab in this application, falls under HUDs Section 504 SubstantialAlterations (24CFR 8.23(a) accessibility regulations; and, the provisions of 24 CFR 8.22(a) and (b) for newconstruction apply.2The applicant also needs to be aware that the most stringent regulations apply to this Five-phase project.The only HUD exceptions that will apply to this project are: exceptions due to undue financial andadministrative burden (24 CFR 8.23(b)(1); or, exceptions regarding alterations that require removing oraltering load-bearing structures (24 CFR 8.32(c).HUDs Office of Fair Housing and Equal Opportunity (FHEO) enforces the Fair Housing Act and other civilrights laws. When Fair Housing and civil rights violations are found, all interested parties are potentiallyheld responsible. Review and approval by a government agency is irrelevant as a defense for design andconstruction violations.3 Violations are subject to injunctive or other appropriate relief, actual damages,and civil penalties. Appendix One is our attempt to make sure that the applicant is aware that of certainaccessibility requirements, civil rights and nondiscrimination requirements, and State agency obligations,that are triggered by this Project at this time, on the basis of certain funding mechanisms mentioned in theapplication.Therefore, we strongly recommend that if any Variances are granted on this Project, that all due diligencebe applied in the evaluation phase, to ensure that maximum feasible accessibility retrofits will be achievedupon completion. Not only should potential applicants and residents with physical and sensory disabilitiesbe provided equal opportunities to use and enjoy the units, common areas of these dwellings and sites; andparticipate in, and access other activities conducted and sponsored by this applicant; but the applicant mustalso ensure that all visitors to these sites have maximum feasible access to each type of common area andamenity that is provided to the public.4On the next pages are discussions for each of our three recommendations.1 A limited review of the Boston Housing Authoritys online inventory of UFAS- accessible units shows that, of theunits inventoried and reviewed online so far (a total of 10, 640 units), there are only 480 (4.5%) units called UFAS-accessible, in sizes ranging from 1 BR to 5 BR, scattered throughout the Greater Boston area.2 The applicant is considered a covered entity under HUDs Section 504 requirements, enforeceable since June 2,1988. Regarding Alterations, HUD regulations state: If the project involves fewer than 15 units or the cost ofalterations is less than 75% of the replacement cost of the completed facility and the recipient has not made 5% of itsunits in the development accessible to and usable by individuals with disabilities, then the requirements of 24 CFR8.23(b) - Other Alterations apply. However, "alterations are substantial if they are undertaken to a project that has 15 or more units and the costof the alterations is 75% or more of the replacement cost of the completed facility. [See 24 CFR 8.23(a)]. In such acase, new construction provisions of 24 CFR 8.22 apply.3 Review and approval by a government agency is irrelevant as a defense for design and construction violations. Seefor example: Fair Housing Council et. al. v. Village of Olde St. Andrews, Inc. et. al (2000); and, U.S. v. Quality BuiltConstruction, Inc. et. al. (2003).4 UFAS 4.1.3 (1)(b). see http://www.access-board.gov/ufas/ufas-html/ufas.htm page 2 of 8
  • 3. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locations1. Please continue the Variance for 3.3/3.3.1/3.3.2. o Regarding 3.3, Existing Buildings, we turn to 521 CMR 9.2.1 to analyze the applicability of 521 CMR to existing multiple dwellings undergoing renovations. 9.2.1 Renovation and reuse: These buildings are exempt from applying State code 521 9.3,Group 1 Dwelling units. However, the applicant is not exempt from the Section 504/UFAS standards toensure 5% wheelchair-accessible units; and 2% for hearing and visually impaired applicants and residents. o Regarding 3.3.1, The work being performed is 179% of the assessed value of the portfolio. The applicant should not be granted any exceptions regarding curb cuts; and, the applicant should be aware of their Section 504/UFAS Minimum requirements, which include at least one accessible route connecting accessible buildings, facilities, elements, and spaces that are on the same site.5 At least one accessible route shall be provided within the boundary of the site from public transportation stops, accessible parking spaces, passenger loading zones if provided, and public streets or sidewalks to an accessible building entrance.6 o Regarding 3.3.2, the work being performed is 179% of the assessed value of the portfolio. The applicant has not submitted any detailed design studies; and, the space matrixes (Exhibits 1A - 1D show that there is at least interior space7 currently unaccounted for, that may be available for space reallocations and redesigns. Regarding Exhibits A - D pertinent to "Note A" the applicant states that installing HP rampswould be inaccessible at some locations, or would encroach on public sidewalk, and that lifts withinvestibules would encroach on existing units. Exterior analysis: The accessible route is a critical element of any site and building; and,these renovations will providing these housing assets a second life. The applicant should provide the AABwith a detailed analysis for a minimal clear width, ground and floor surfaces, level changes, slope and crossslope, vertical clearance and protruding objects to ensure that all feasible options have been considered forthe exterior of the buildings. Interior analysis: the applicants Exhibits 1A - 1D space matrix shows that there isunnaccounted-for additional square footage in each building. Space that is not currently accounted for in thisapplications square footage matrix (exh. 1A - 1D) includes: units currently listed as abandoned; any floors withoutactive units; any units that have remained vacant since the last expiration of the HAP contract; and, all basementspaces.On page 3 of the Variance application, the unit breakdowns of Wayne Apartments accessible units aresummarized. Out of a total 349 units, only 18 units are listed as "HP." The applicant provides noinformation regarding how such units were evaluated for accessibility.Summary: We recommend that the Board continue this part of the Variance application, and requireapplicant to provide a detailed analysis of infeasibility, taking into account all possible space8reallocations and redesigns that may be possible, in exterior and interior portions of the site, prior tocompletion of this project.5 UFAS 4.1.1(2). see http://www.access-board.gov/ufas/ufas-html/ufas.htm6 UFAS 4.3.2. see http://www.access-board.gov/ufas/ufas-html/ufas.htm7 Space that is not currently accounted for in this applications square footage matrix (exh. 1A - 1D) includes: unitscurrently listed as abandoned; any floors without active units; any units that have remained vacant since the lastexpiration of the HAP contract; and, all basement spaces.8 This is not meant to include mechanical rooms and other spaces that, "because of their intended use, will not requireaccessibility to the public or beneficiaries or result in the employment or residence therein of individuals with physicaldisabilities" (24 CFR 8.32(6)). page 3 of 8
  • 4. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locations2. Please deny the Variance for 9.4.1. 521CMR 9.4.1: Total dwelling units in a complex: When multiple dwellings consist of more than one building on a site or are located on several, non-contiguous sites, all dwelling units shall be added together to determine applicability of 521 CMR 9.4.3 administrative reasons why 9.4.1 should not be permitted as a blanket waiver for this multi-municipalportfolio:• 521 CMR 9.4.1 does not apply, because "Several" means more than two, but not many. This application covers many sites, buildings and units, which are located in three distinct towns. We have 26 sites, and 55 buildings = a total of 349 units geographically scattered between Roxbury, Mattapan and Dorchester.•• IRS reporting does not support the "complex" concept for this project. The applicant indicates that historic tax credits (HTC) are being sought for 21 buildings (Exhibit 2).Although a project can have a single financing package that includes multiple buildings and multiplephases, IRS reporting is on a building-by-building basis.9• HUD definition for multifamily housing projects do not support the "complex" concept for this project. HUD says, "The definition of a multi-family housing project ... includes a property that is either on a single site or a property that has multiple structures on the same site with less than five units in each, but with a total of at least five units on the site."Therefore, the Wayne Apartments Project does not fulfill HUDs definition of a single site or property,because the 26 geographically distinct sites cannot be considered either "a single site;" or, "the same site."103. Please continue the Variances for 9.4, 9.4.2 and 10.1• The applicant has not provided either architectural studies, nor cost estimates showing why the creation of additional accessible units, accessible common areas, and accessible routes are an undue burden without substantial benefit to persons with disabilities. The applicant should be aware that HUD defines "Structural Impracticability" as: Changes having little likelihood of being accomplished without removing or altering a load- bearing structural member and/or incurring an increased cost of fifty percent (50%) or more of the value of the element of the building or facility involved. UFAS § 3.59 LIHTC Database, p. 13, note 6. SEE http://www.huduser.org/Datasets/lihtc/topical9509.pdf10 However, the applicant might examine the possibility that, if there are several buildings that expire together, andare annually renewed as one HAP contract, these might be grouped together as "developments." (per Section 504) page 4 of 8
  • 5. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locationsSummaryWhile we recognize that these are not ideal conditions, an investment in maximum feasible accessibilityretrofits at this time should be encouraged, while this entire portfolio is receiving new life. We encouragethe applicant to go "back to the drawing board" and take a second look at the space reallocationpossibilities in the interiors of these buildings; and the landscaping/walkway options that may be availablearound the exterior boudaries of at least the 18 sites that offer 10 or more units.We encourage all interested parties to the Variance, including developers, contractors, consultants involvedin the application or in the planning, development, implementation of the project; and, any other personwho has a financial interest in this project to consider the positive impact this rehabitation project can haveon these neighborhoods, should the diversity of children, adults and older people with disabilities gainthese housing opportunities in the same manner as the rest of the general public.And those new residents would also gain access to the social, cultural, transportation, recreational,educational and employment opportunities within walking distance of these sites.All interested parties should also be aware that they are subject to Section 504/UFAS obligations, whichhave already been in effect for 24 years11. Accessibility retrofits to the common and public areas, andensuring that the 5% requirement is met, at least in buildings with 10 or more units, can go far in helpingWayne Apartments be a good neighbor and make sure that all parties in the Master leases can stay inbusiness.It is our hope that the State Board will be able to guide this applicant to prioritize an outcome that includesadditions and improvements that will achieve the maximum accessible housing conditions possiblethroughout this project portfolio that impacts low-income neighborhoods in Roxbury, Mattapan and andDorchester.Thank you for your consideration of these comments from BCIL and CAPS. Please include this documentin full within all Hearing information provided to the Board; within the packets distributed at PublicHearings for V12-102; and, in the permanent and complete administrative file that will be kept for #V12-102.Sincerely,Eileen Feldman, Director, Bill Henning, Executive Director and Karen Schneiderman, Senior AdvocateCommunity Access Project Boston Center for Independent LivingCAPSom @verizon.net KSchneiderman@bostoncil.org11 HUDs Section 504 implementing regulations became enforceable on June 2, 1988. page 5 of 8
  • 6. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locations APPENDIX ONEApplicant should conduct a detailed analysis of how they and their PHA and State partners will achieveminimal Federal and State accessibility and civil rights obligations; including what types of waivers will besought alongside of this AAB Variance application.The AAB, as a State agency, must not make any decisions that restrict, or have the effectof restricting, the availability of housing choices based on race, color, religion,sex, disabilities, familialstatus, or national origin.When Fair Housing violations are found, all parties are potentially held responsible.1213• The applicant has asked for a Variance per 521 CMR 3.3, stating "achieving compliance at all required buildings would make the buildings less accessible to other users, would encroach on public rights of ways accessible elements would have to be placed at inaccessible or areas of limited acccessibility." o Irregardless of whether the MAAB grants this portion of the Variance, the applicant is subject to HUDs Section 504/UFAS provisions (see 24 CFR §8.23, Existing Facilities and §8.22, New Construction). At the very least, applicant needs to ensure that maximal feasible accessibility retrofits for public and common use areas and dwelling units are an outcome of this rehabiliation project. Case law fully supports this.14• The applicant has not provided either architectural studies, nor cost estimates showing why the creation of additional accessible units, accessible common areas, and accessible routes are an undue burden without substantial benefit to persons with disabilities. The applicant should be aware that HUD defines "Structural Impracticability" as: o Changes having little likelihood of being accomplished without removing or altering a load- bearing structural member and/or incurring an increased cost of fifty percent (50%) or more of the value of the element of the building or facility involved. UFAS § 3.5• HUDs definition of "accessible" is as follows: o Accessible – When used with respect to the design, construction, or alteration ofhousing and non-housing programs, “accessible” means that the program or portion of the program whendesigned, constructed, altered or adapted, can be approached, entered, and used by individuals who usewheelchairs. A program that is designed, constructed, altered or adapted to be in compliance with theUniform Federal Accessibility Standards (UFAS), 24 C.F.R. § 8.32, Appendix A to 24 C.F.R. § 40, and,where applicable, the Americans with Disabilities Act Standards for Accessible Design (ADA Standards),Appendix A to 28 C.F.R. § 36, meets the minimum standards for compliance and is accessible. Alterationsof facilities designed before July 11, 1988 shall conform to the provisions of the UFAS to the maximumextent practicable.12 overview, HUD Compliance Sanctions: http://www.hud.gov/library/bookshelf01/compsanctions.cfm13 see also www.olmsteadva.com/mfp/downloads/HUDSection504FairHousingandADA.ppt14 see note 3. page 6 of 8
  • 7. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locationsSTATE AGENCY OBLIGATIONS:• At the very least, the State must remedy systemic discrimination and promote fair housing rights and fair housing choice. Regionally, MAPC Metro Boston has stated a firm commitment to principles of "Building Sustainable Communities of Opportunity" (2011)15.• Massachusetts civil rights and affirmative furthering of fair housing obligations and policies include the assurance that efforts will be taken to overcome barriers to housing choice, and to increase housing opportunities to historically underserved residents. This project triggers the States Federal civil rights and nondiscrimination obligations and regulations, including: o 24 CFR §903.7(o)(3)- AFFH regulations16 o 24 CFR §903.7(o)- Housing Choice Voucher and Project Based Vouchers o 24 CFR §§200.600-640 - FHA-insured housing, Affirmative Fair Housing Marketing Plan (AFHMP); and o 24 CFR part 91 §91.325 (a)(1)- State CDBG regs• The applicant states that this is a moderate rehabilitation project; this indicates that these units may be under existing HAP contracts. HAP contracts are between the owner and the PHA. Along with the PHAs obligations to the State and HUD, State agencies also have obligations to adhere to HUD regulations and directives relevant to Mod Rehab HAP contracts. Mod Rehab HAP Accessibility and civil rights regulations (referenced in 24CFR Part 883 Subpart D and E) at 24 CFR §5.10517 include: o The Fair Housing Act (42 U.S.C. 3601-19) and implementing regulations at 24 CFR part 100 et seq.; and o Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at part 8 of this title • The applicant indicates that all but 5 buildings "have received or will be submitted for historic tax credits." (page 13 of 62-page application). These HTC credits are administered at the state level under the states Qualified Allocation Plan (QAP).18 o Massachusetts 2010 QAP includes Appendix G, an accessibility checklist. The MA 2010 QAP states, "In addition to the requirements of the Massachusetts Architectural Access Board (MAAB), projects may also be subject to other applicable federal, state and local statutes and regulations such as the Fair Housing Act (FHA), Section 504 of the Rehabilitation Act of 1973, the Architectural Barriers Act of 1968 (ABA), and the Americans with Disabilities Act (ADA)." (page 50)15 Please note the MAPC Metro Boston commitment presentation by Tracy Brown (Fair Housing Center of Boston) andMargeaux LeClair (Counsel/Specialist, DHCD) during the June 2011 meeting athttp://www.slideshare.net/MAPCMetroBoston/building-sustainable-communities-of-opportunity. this ppt provides anoverview of AFFH and Civil Rights obligations (but does not cite applicable regulations)16 for more information about AFFH, also please see E.O. 11063http://www.hud.gov/offices/fheo/FHLaws/EXO11063.cfm and about promoting fair housing, please see:http://www.hud.gov/offices/fheo/promotingfh.cfm17 full text at: http://www.gpo.gov/fdsys/pkg/CFR-2004-title24-vol1/xml/CFR-2004-title24-vol1-sec5-105.xml18 Massachusetts Qualified Allocation Plan (2010) at http://www.docstoc.com/docs/45315131/Final-2010-Qualified-Allocation-Plan page 7 of 8
  • 8. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locations Appendix Two- URGENT ACCESSIBLE HOUSING NEEDS IN GREATER BOSTON AREA"There remains a severe shortage of affordable, accessible, and integrated units in the city andsurrounding communities." - - Bill Henning, Executive Director of the Boston Center for IndependentLiving. May 8, 2012In the Greater Boston area, the online listing of the Boston Housing Authoritys (BHA) UFAS inventory maybe outdated; however, it demonstrates that there were only a handful of new BHA UFAS units created inRoxury, Dorchester and Mattapan over the last decade. Reliable information regarding totals and % ofaccessible section 8 units was not found in time for these comments.Greater Boston area BHA totals- this is just a preliminary draft and not to be considered a final review:The BHA has approximately 60 developments, serving ~27,000 people across ~14,000 public housingunits. Below, is a breakdown of the inventory that has been evaluated for UFAS-accessible units, and iscurrently online. Out of 10,640 units, 480 are UFAS-accessible- 4.5%.:4.2% of the total 1BR units (4355) are UFAS-accessible = 183 UFAS, 51 have roll-in showers.4.09% of the total 2BR units (3492) are UFAS-accessible = 143 UFAS, 20 have roll-in showers.4.63% of the total 3BR units (2180) are UFAS-accessible = 101 UFAS, 24 have roll-in showers.6.6% of the total 4BR units (515) are UFAS-accessible = 34 UFAS, 12 have roll-in showers.2.46% of the total 5BR units (81) are UFAS-accessible = 2 UFAS, 1 has roll-in shower.There are 17 6 BR units, but 0 UFASWayne Apartments totals: On page 3 of the Variance application, the unit breakdowns of WayneApartments accessible units are summarized. Out of a total 349 units, only 18 units are listed as "HP." Theapplicant provides no information regarding how such units were evaluated for accessibility.This information shows that Wayne Apartments currently offers 2 accessible 1BR units in Dorchester; and, 21BR units in Roxbury and no 1BR units in Mattapan. Wayne Apartments currently offers 14 accessible 2BRunits in Roxbury and none in Dorchester or Mattapan. 7 of the 2BR units in Roxbury offer adaptability forHearing impaired tenants; and none in either Dorchester or Mattapan. Wayne apartments currentlyprovides no Group 1 or 2 3BR, 4BR or 5BR family units in Dorchester, Roxbury or Mattapan. No accessibleunits in portfolio are located in Mattapan. Maximizing accessibility at all site locations should be a top tier priority objective of this Wayne Apartments rehabilitation project. page 8 of 8

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