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patrick.russell

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 #1 

Reasoning for Changing TDHCA’s Multifamily Policies Regarding Accessibility

 

Staff at TDHCA are exploring the possibility of replacing subparagraph (B) of 10 TAC §10.101(b)(8), “Development Accessibility Requirements,” with a rule that meets both accessibility standards and standards for visitability.

 

Currently, §10.101(b)(8)(B) requires that at “New Construction (excluding New Construction of non‐residential buildings) Developments where some Units are normally exempt from Fair Housing accessibility requirements, a minimum of 20% of each Unit Type (i.e., one bedroom one bath, two Page 21 of 21 §10.101(b)(8)(B) bedroom one bath, two bedroom two bath, three bedroom two bath) of otherwise exempt units (i.e. single family residence, duplexes, triplexes, and townhomes) must provide an accessible entry level and all common‐use facilities in compliance with the Fair Housing  Guidelines, and include a minimum of one bedroom and one bathroom or powder room at the entry level.”

 

New Rule for Visitability and Accessibility; to replace the current §10.101(b)(8)(B)

                                                                    

Regardless of building type, all Units accessed by the ground floor or by elevator must comply with the following visitability requirements below.  Design specifications for each item must comply with the standards of the Fair Housing Act Design Manual.  Buildings built before 1991 are not exempt.

 

  1. There must be at least one zero-step, accessible entrance.

  2. There must be at least one accessible bathroom or half-bath with toilet and sink on the entry level.  To allow for maneuverability, there is at least 48” X 56” of clear floor space at the toilet and outside the swing of the door.  The bathroom or half-bath includes a minimum 24” grab bar beside the toilet on a reinforced wall.  The grab bar can also serve as a towel bar.

  3. There must be an accessible route from entrance to bathroom or half-bath, and the entrance and bathroom doors must provide ample width.

  4. Light switches, electrical outlets, and thermostats on the entry level of the Unit must be at accessible heights

     

    Attendant Rule Change to §10.207(a)(1), General Waiver Process

     

    Any waiver request for 10 TAC §10.101(b)(8)(B) must include a signed certification from the structural engineer of record for the Development that explains in detail why compliance with 10 TAC §10.101(b)(8)(B) is not environmentally feasible.  Waivers will not be considered for new construction.

smathon

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 #2 
Here is my two cents. 

In a new construction context, the proposed rule change is positive and I support it. 

In a rehab context, the challenges could be minimal or they could be fiscally insurmountable. We had a rehab project in Austin where we were required to meet similar visitability requirements under the SMART Housing protocol. The existing condition of the property (both site and residences) was such that each apartment required ~$50,000 worth of work to comply (moving walls, site grading, etc.). 

Of course, I fully support achieving as much visitability and accessibility as possible, but depending on the existing property, the required work could potentially "kill" a deal unless separate funding is identified to mitigate additional costs. 
tomahan

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 #3 
My two cents from primary caregiver experience is Item 2 should require a grab bar for the bath tub or shower if present, not just the commode.  Seems item 3 about bathroom accessibility is a bit short.  Ample width for what?  I would suggest a standard sized wheel chair.
patrick.russell

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 #4 
Thank you for your responses thus far.

We would be interested in also hearing about how this potential rule change compares and contrasts to local ordinances that developers have encountered. "Smathon" above mentions Austin. Do any others have experience with Austin's visitability ordinance? And do any other major metropolitan areas in the state of Texas have ordinances similar to Austin's?

-Patrick Russell
smathon

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 #5 
To be clear, the "visitability ordinance" in Austin is tied SMART Housing projects which is tied to affordability. The point being that standard market rate housing does not have to comply typically. 

Thanks.
devin.baker

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 #6 
I agree with Tracey.  Accessibility to all is an important goal, but it is not feasible for rehab deals.  For most pre-1991 developments, this proposed rule would require floor plan modifications of every ground floor unit.  In most units this would mean modifying the footprint of the building.  Rehab developments need every dollar possible to go towards preparing for the next 20 years of service.  These additional costs could potentially kill an otherwise solid deal.
Jeff Piatt

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 #7 

This proposed rule which is intended to provide more fair housing accessibility could have an effect on housing accessibility with regard to Affirmatively Furthering Fair Housing (AFFH), which, as most of us in the business know is the desire of HUD to have developments built in high opportunity areas. 

Urban cores that meet the AFFH requirements are in high demand by both market rate and affordable developers. There will be older, pre-FHA rehab deals in these high opportunity areas that won’t work financially due to the cost of providing the no step entrance to every first floor apartment. It’s as simple as that. It is often a challenge just to meet the requirement for an accessible route and the required 5% accessible units in these pre-FHA rehabs. Much of the high opportunity urban core in larger cities has been “built out”, often leaving these older, sometimes historic, rehab deals as some of the only financially viable projects for affordable housing in those areas. Some of these existing urban developments sit on smaller tracts of land and will be unable to provide the space to create the necessary ramping to get past existing steps at the front door. These rehabs that get passed up would have provided the opportunity for lower income individuals, especially minorities,  to have an affordable home in a high opportunity urban area.

 

With regard to new construction, I disagree with some of the other posters in that I believe there could be at least some limited effect to AFFH due to some deals being infeasible either technically or financially. I have personally worked on two different projects in high opportunity suburban areas where the topography was such that a mix of townhomes and flats was used so that some of the townhomes could be located on a higher piece of the property so as to allow the flatter areas to be utilized by other buildings and amenities that required an accessible route and entrance. With the dwindling supply of suitable land and it’s high cost in high opportunity areas, this new rule could kill deals where the developer would have to either pass up the piece of land due to topography or would have tremendous amounts of grading that required costly retaining walls and other environmental considerations that would make the project financially infeasible.  

 

My recommendation?

Rehabs that were constructed before Fair Housing Act Accessibility requirements were mandated should continue to be exempt. Providing housing in high opportunity areas, especially those in the urban core, has been given top priority by both HUD and housing advocates and requiring all rehab units to meet the no step entrance will reduce some of the future high opportunity affordable housing choice in Texas by virtue of developers having to pass up some of these opportunities.

With regard to new construction the possible effects are not as clear as with rehabs but my suggestion to the department might be to raise the percentage of townhome units currently required to meet the no step/FHA first floor rule but to ultimately leave that percentage at 50% or less. This solution would provide more accessible units and would also help make more deals possible in high opportunity areas with a lot of topography.

patrick.russell

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 #8 
Thank you all for your comments. After reviewing your feedback and after hearing proposals from participants at the most recent Disability Advisory Workgroup, we have made a few changes to this possible rule.

For those concerned about infeasibility, I call your attention to the revised language under the General Waiver Process. Instead of writing "not environmentally feasible," we now have "structurally infeasible."

New Rule for Visitability and Accessibility; to replace §10.101(b)(8)(B)

 

Regardless of building type, all Units accessed by the ground floor or by elevator (“affected units”) must comply with the following visitability requirements below.  Design specifications for each item must comply with the standards of the Fair Housing Act Design Manual.  Buildings built before 1991 are not exempt:

 

  1. All common use facilities must be in compliance with Fair Housing Design Act Manual.

  2. There must be an accessible route from common use facilities to affected units.

  3. For each affected unit there must be:

    1. At least one zero-step, accessible entrance.

    2. At least one accessible bathroom or half-bath with toilet and sink on the entry level.  To allow for maneuverability, there is at least 48” wide by 56” deep clear floor space around the toilet, outside the swing of the door.

    3. The bathroom or half-bath must have the appropriate grab bar relative to the toilet with sufficient wall reinforcement.  The grab bar can also serve as a towel bar.

    4. There must be an accessible route from entrance to bathroom or half-bath, and the entrance and bathroom must provide usable width.

    5. Light switches, electrical outlets, and thermostats on the entry level must be at accessible heights.

       

      Attendant Rule Change to §10.207(a)(1), General Waiver Process

       

      Any waiver request for 10 TAC §10.101(b)(8)(B) must include a signed certification from the architect of record for the Development.  The waiver must explain, in detail, that compliance with 10 TAC §10.101(b)(8)(B) is structurally infeasible.  The Department may request additional information to support the waiver request that could include, but is not limited to, additional certification(s) from the engineer(s) of record.  Waivers will not be considered for new construction.

Jeff Piatt

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 #9 
I guess the question for me regarding the waiver is when does it have to be submitted and will the department make a commitment to a short and specifed turn around time? Can it be submitted for review and initial approval? Ideally before or at latest at pre-app process?

There are significant costs in applying for the program such as option to buy costs, consultants, etc. and it may decrease the willingness to take part in these rehab deals if all of the proceess and costs of applying for the program must take place only to find that a waiver may not be possible.


gmcg

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 #10 
I agree that for new construction, this is a worthy goal.

Rehab is an entirely different situation, and this will add significant costs to already expensive rehab transactions.  In some cases, it will become a trade-off for other planned rehab.  Many of the older projects were built 30, 40 and 50 years ago and are hoping to be around for another 30 years.  

I'd also like to hear more about the waiver process, and where the line will be drawn on "structurally infeasible".  
gmcg

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 #11 
     I am responding on behalf of the RRHATX members based on 9 owner-member-responses for existing USDA properties.
     All agree that visibility for new construction is worthy, and can be accomplished without excessive additional cost.  All also request clarification of the meaning of "structurally infeasible."  At what point does a project meet that definition?
     All agree that having this apply to older rehab projects will be costly, and will be done at the expense of other needed rehab.  It will be a trade-off in the USDA properties built on the design guidelines they were required to follow by RD and TDHCA when these properties were originally built.  The costs to comply with the visitability rule on older properties are significant.
     Costs to comply with this rule come in at $8,500 to $12,000 per unit on older properties.  The bathroom is a major expense if walls, or footprints are to be altered. Does moving walls, or adding footprint constitute "structurally infeasible"?  One member calculated a senior complex with a 32 unit, 8 4-plex all ground floor buildings (no elevator) as $320,000.  
     The $104 per foot for acquisition and hard cost (building cost, site work, amenities and contractor fees constricting), are at odds with preservation if the older properties, particularly the ones in most need of updating and rehab, are required to meet this new rule.  To accomplish a full rehab, $57,000 to $65,000 per-unit-total-contract, is currently needed.  Choices are already being made on which rehab systems to keep and which to eliminate. 
     An example of a 515 seniors act/rehab from last year is available.  To get under the $104 per foot, these were the numbers:  per unit equity paid: $2,592; per unit debt assumed: $23,742; per unit hard cost: $46,850 per unit.    
     If visitability is added to the above example the cost needs to increase to $130 per foot.  
     A big concern is the movement of walls or A/C units, or enlarging the footprint to accommodate the new requirements. This is a realistic concern for most pre-1991 construction. Additional space may have to come from already small bedrooms, storage space or closets.   Please comment on how TDHCA will interpret "structurally infeasible", and at what point a project complies, or doesn't.  Will changes still be required up to the "structurally infeasible" point?  In other words, for example, would a project be required to lower light switches, raise electrical outlets, widen doors, add a ramp but not comply with the bathroom maneuverability?



     






teresabowyer

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 #12 
A few thoughts on behalf of our construction team:

The New Rule does not exempt buildings built before March 13, 1991. That will be a huge cost impact to acquisition/rehab properties. It is often impossible to make existing bathrooms and kitchens accessible without exceeding 50 or 75% of the cost to build new. Keeping the March 13, 1991 cutoff is critical to minimize the impact to rehab properties.

In order to achieve the 100% visitability on the ground floor or elevator buildings (every unit) the New Rule will push away from townhomes products and towards interior corridor buildings. This will have an impact on building style.
BobbyBowling

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 #13 
This is a HUGE problem that almost everyone in the industry I've spoken to opposes AS MUCH ON NEW CONSTRUCTION AS REHAB.  Besides the obvious increase in cost to enlarge bathrooms on every first floor (and second floor in elevator buildings), I believe staff is not understanding the gravity of requiring the accessible route on up to 100% of the units in many design types. 

If the standard requiring an accessible route as stated below passes, it will add hundreds of thousands or even millions to a site with elevation differences.  There are many such sites in El Paso (nestled into the Franklin Mountains) and the Hill Country of central Texas.  It will actually make some of the most desirable development sites (those with a view on higher elevations) infeasible for tax credit developments entirely, depriving low-income tenants of some of the best real estate and forcing them to live exclusively on lower-lying, flat parcels of land--which I believe is a very unfair form of "red-lining".  The development we did in El Paso in the 2013 cycle, called Verde Palms, actually elicited comments from TDHCA staff during underwriting that it was the best piece of real estate every submitted for a tax credit deal in El Paso--well, it was a tiered piece of real estate, on a hill, with a spectacular view of the valley of El Paso and Juarez, (by no coincidence, contained within one of the highest income census tracts in El Paso).  There is no way we could make that piece of real estate work for this "accessible route" requirement, as we took on an enormous cost of hundreds of thousands of dollars just to meet the requirement of the 20% accessible route (which is already 4 times higher than the national UFAS and ADA standards).  TDHCA should be looking at LESSENING the 20% requirement closer to the national standard of 5% especially in this time of tightening credit prices, rather than increasing this standard to 20 TIMES the national requirement.

We strongly oppose this aggressive proposal to increase the "visitability" standard to 20 times above the required national standard and 5 times what is in place now for units with first floor entries (all townhome designs) and elevator served buildings.  I believe TAAHP will take an official position against this as well in the near future.  It would be a shame to take badly needed tax credit equity dollars for this unnecessary increase in costs on every deal instead of building more needed housing for low-income Texas families.

smathon

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 #14 
With all due respect to the previous poster, I have to disagree with his dramatic (from my perspective) assertion of increased costs. We have been doing this on all units for years now and we're talking about adding the only "cheapest" form of sq ft - no plumbing, no electrical, no walls, etc. - just modest floor area increase.

In fact, we see it as a cost savings in the long run as we have far fewer requests for "reasonable accomodation" over time. 

If there is going to be an argument about cost in new construction, then I think it needs to be justified with actual projected costs.
BobbyBowling

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 #15 
Looking at only the costs of added area in bathrooms the previous posted states is a very myopic viewpoint (in my humble opinion) and does not address the bulk of my opposition to the proposal at all.  The costs and prohibitions on a tiered or elevated site are real and can be found in the cost certification on the Verde Palms development we did in El Paso--and the site work on that development only addressed the 20% rule, not this 100% suggestion. 
Jeff Piatt

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 #16 
I'm still waiting to hear about this waiver process. How much money will developers have to spend before they find out that they can't get a waiver?

I don's see the department ever giving one of these waivers, for any reason, since it will open up the department to scrutiny and or suits from advocates or developers. It will be quite a process to try to develop a criteria that is fair and can be defended for each waiver that is given. Much easier for the department to say "no" than to assume risk.

I've already instructed my clients that older and historic rehabs and townhomes are no longer worth the risk of going after if this rule is in place. Perhaps denying these types of structures is the actual intent of the rule?

patrick.russell

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 #17 

Thank you all for your comments.

In light of the recent QAP Roundtable on May 24th, 2017, where the proposed Visitability Rule was discussed, staff has drafted a few possible solutions regarding properties seeking rehabilitation--specifically those properties designed and constructed for first occupancy before March 13, 1991.

As staff reiterated at the Roundtable, the Department hopes to find a solution for these older properties that encourages redevelopment standards that incorporate visitability, or some aspects of it, while also recognizing cost constraints as the affordable housing community seeks to maximize the number of units constructed/rehabilitated.

To provide context, staff estimates that about 20% of each year’s 9% HTCs go to Acquisition and Rehab, with the remaining 80% going to New Construction and Reconstruction. We are currently evaluating what percentage of that 20% is comprised of pre-March 1991 properties. 

Development type context:

Development Type Breakdown for 9% HTC Awardees

 

NC / RC

A/R

2014

57

11

2015

49

17

2016

52

13

TOTAL

158

41

% of Total

79.40%

20.60%

 

The possible solutions are as follows:

  1. Exclude the cost for compliance from cost per square foot scoring items.
  2. Exempt pre-March 13, 1991 properties seeking rehabilitation, but still offer an incentive for complying with the visitability rule.
  3. Grant a waiver if the cost to comply exceeds a certain percentage of total development cost. Determine what that threshold should be.
  4. Allow alternative visitability guidelines for pre-March 13, 1991 properties seeking rehabilitation. Consider “Aging-in-Place” measures for these properties.

 

allgeier

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 #18 

This proposed rule should not be enacted for reasons previously given and:

  • This will significantly decrease the number of affordable units that can be provided each year - both acquisition/rehab units as well as new units.  The higher site development costs are obvious and this is not limited to the hill country or Franklin Mountains.  This proposal increases the costs everywhere in Texas as square footage for area in front of toilets and in hallways is not really usable living area.  To provide livable units with sufficient room for beds and furniture, the overall square footage of units will have to be increased.  Many of the costs of construction like foundations, framing, and roofing are bid on a square foot basis so the overall cost will increase accordingly. The previous poster's "cost savings" for this and "cheapest form of sq ft" hasn't been our experience.  It will cost significantly more to build and we don't see long term savings in requested modification.  I'm not the expert, but I though "reasonable accommodation" didn't have to be done if it resulted in an undue financial burden.  Our experience has been moving walls to make bathrooms bigger has been ruled to be an undue financial burden. 

  • This will eliminate most townhouse style developments - some of our most popular affordable units. 

  • This will eliminate most single story style developments.

  • Why do visitors need easy access to electrical receptacles and thermostats? 

  • Existing properties, particularly those built to HUD and USDA "minimum property standards" - the requirement in the 1970's and 1980's - will require significant structural changes to meet these requirements if they can be achieved at all.  This will make most USDA, RAD or historical renovations much more expensive and difficult.  That eliminates tens of thousands of existing units from needed renovation and decreases opportunities in certain areas.  The historical study of acquisition/rehab versus new construction shown above is interesting.  Other than those properties that fit within the definition of USDA or "at risk" rehabs and can compete in those set asides, rehabs typically have had great difficulty in being competitive in scoring because of cost of development, basis and other reasons so you haven't seen many applications of this nature.

    This seems to stray from the charge of the Agency to administer Section 42 of the IRS Code and provide the most quality affordable housing for the available credits.  This should not be enacted. 

     

---------------------

If the Agency does institute something like this however:

All acquisition/rehab properties should be exempt.  This shouldn't be a wavier on a case by case basis but an exemption.   

The cost of these requirements should be removed from any calculation of cost of development per square foot or leverage.  How you will verify this at application is difficult to determine.  Any realistic architectural or engineering study will greatly increase application costs.  How you will verify this at cost certification is also difficult to determine.  As a registered engineer I would be very uncomfortable providing a certification without a significant amount of investigation that isn't normally included in our work. 

patrick.russell

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 #19 
It may be helpful to reference specific chapters / page numbers in the Fair Housing Act Design Manual as stakeholders consider potential costs for compliance. Staff would like to reiterate that the standards for this proposed rule come entirely from the Manual. For those items listed below 3) of the proposed Visitability Rule, please reference the corresponding chapters / page numbers:

1. page 3.10
2. page 7.43 (corrected to actual page in manual for floor space)
3. chapter 6
4. page 3.3
5. chapter 5
jsisak

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Posts: 4
 #20 
This proposed rule is problematic for both developments with units that are covered by the Fair Housing Act and for developments with units exempt from the Fair Housing Act, like developments with a high or 100 percentage of townhome units.

For developments with all one story units, this rule adds unnecessary expense in terms of the addition of grabs bars, which could be significant and overkill in 200-300 unit deals.  It is also unclear as drafted whether the floor clearance space is the same as required by the FHA design guidebook or is larger.  We therefore propose that subsection c read:

"there is clear floor space consistent with Fair Housing guidelines for adaptable units" and delete the specific reference to  "at least 48" wide by 56."  I am afraid that this rule is unintentionally creating two possibly conflicting standards, and therefore deferring to the Fair Housing guidebook is preferred.

For developments with a high percentage of units that are Fair Housing exempt, this rule is problematic because it increases the adaptability requirement from the current 20% to 100%.  Widening bathrooms and creating accessible paths to every exempt unit will add significant cost to these development.  And it will result in less marketable units.\
EAbeln

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Posts: 1
 #21 

New Hope Housing respectfully requests that the Department consider the impact of this proposed rule on Single Room Occupancy developments. *At a minimum*, SROs should be exempted from the proposed clear floor space requirement in the bathrooms.

SRO units are modest in size – typically under 300SF – and while visitable, they are not designed to accommodate guests for an extended length of time. ADA compliant SRO units require a minimum of 350SF.  SRO developments, by design, have abundant shared community spaces where a resident and his/her friends and family can gather to visit. These ample community gathering spaces also include fully accessible bathrooms. Increasing the size of 100% of the elevator-served units to accommodate this clear floor space in the bathrooms would result in a 30% total increase in Net Rentable Area of the development. At the surface, and without a full breadth of understanding, this does not appear to be more onerous than the cost of the floor/ceiling assembly. However, this deeply hinders the ability of a developer like New Hope Housing to achieve appropriate density in a traditional stick frame structure.

As a relevant example, New Hope Housing at Harrisburg, a 175 unit mixed-use SRO development under construction in Houston would have had to *decrease* the overall number of units constructed to be able to fit this additional square footage into its existing four story, urban infill footprint. To achieve the same cost-efficient, tight urban constraints, under the proposed rules, this development would be capped at a max of 136 units – 39 fewer than currently being built. These units serve our community’s most vulnerable citizens – and this seemingly benign rule would have effectively eliminated 39 units of housing for those who would otherwise be homeless - more than 250 individual souls in these 39 units over the next 15 years. That is the net impact of this rule on SRO developments. Applying this to SRO projects simply stands in the way of our mission to house as many individuals exiting a life of indigence and homelessness as we possibly can. 

Please exempt SRO developments from the clear floor space requirement.

patrick.russell

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Posts: 11
 #22 
This is the current staff draft for the proposed rule regarding visitability. Thank you all for your previous comments.

 

New Rule for Visitability and Accessibility; to replace §10.101(b)(8)(B)

 

 

 

Regardless of building type, all Units accessed by the ground floor or by elevator (“affected units”) must comply with the following visitability requirements below.  Design specifications for each item must comply with the standards of the Fair Housing Act Design Manual.  Buildings occupied on or before March 13, 1991 are exempt:

 

 

 

  1. All common use facilities must be in compliance with Fair Housing Design Act Manual.

  2. There must be an accessible route from common use facilities to affected units.

  3. For each affected unit there must be:

    1. At least one zero-step, accessible entrance.

    2. At least one visitable bathroom or half-bath with toilet and sink on the entry level.   The layout of this bathroom or half-bath must comply with one of the specifications set forth in the Manual.

    3. The bathroom or half-bath must have the appropriate blocking relative to the toilet for the later installation of a grab bar, if ever requested by the tenant of that unit.

    4. There must be an accessible route from entrance to bathroom or half-bath, and the entrance and bathroom must provide usable width.

    5. Light switches, electrical outlets, and thermostats on the entry level must be at accessible heights.

       

      Attendant Rule Change to §10.207(a)(1), General Waiver Process


      [the rule for the waiver process would reference the Fair Housing Act Design Manual "Site Impracticality Tests," which are located in chapter 1.4 of the Manual for your reference]

 

joechamy

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Posts: 1
 #23 
For existing units, biggest concern is functionality of bedrooms or hallways etc after expanding bathroom size...........might conceivably make some units unleasable
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