In 1990, the Americans with Disabilities Act was signed into law. With its five separate titles, each specifying different sectors of society, Title III has proven to be particularly troubling for real estate developers. According to Adata.org, Title III “prohibits private places of public accommodation from discriminating against individuals with disabilities.” That can include anything from a hotel to a restaurant to a movie theater. Any building built since its enactment must adhere to the title’s stringent codes, and, having once directed several large scale renovations of thousands of rental units and lobbies, I have seen, firsthand, the financial burden and impact an ADA lawsuit can have on property owners.
In late 2011, a firm that I worked for was contracted to retrofit several buildings that were non-compliant, one of them being a 433 unit apartment building in Brooklyn, NY for a developer that was targeted with a lawsuit for non-compliance of the 2010 ADA Building Code. The DOJ (Department of Justice) sued this developer, issued a consent decree and mandated them to cure multiple non-compliant conditions throughout the 42 story building. The conditions were due to a set of drawings that were “approved” by the Department of Buildings, and up to current city building codes and Local Law 58 — a New York City building law that requires newly constructed buildings to provide access to people with disabilities — when the building was constructed. The issue with Local Law 58 is that, while it does contain stringent accessibility codes, it is not exactly ADA compliant.
So one would think, “Easy enough, just identify each violation and bring all non-compliant conditions to meet current code.” It sounds logical until one looks at the logistics of the project. And Title III is tricky enough given its requirement for retrofitting non-compliant buildings, but when each of those 433 units has “Tenants In Occupancy,” the task becomes more complex.
After analyzing the consent decree issued to the client and identifying the non-compliant conditions, a stacking plan of the affected units and matrix needed to be developed to identify each unit and its SOW (Scope of Work) to remedy the condition; we call this the “Pre-construction phase.” Hundreds of hours are put into disseminating the information listed within the consent decree issued by the DOJ. Once a detailed SOW has been created for each unit and a stacking plan has been established, each trade is put out for bid, a buy-out schedule is created for the project and reviewed, and finally, a schedule of values is created once each contract is awarded.
Every detail is reviewed and checked twice against the ADA Standards for Accessible Design regulations. Each condition is given a SOW and placed within a matrix that is then converted into a schedule identifying each unit and its conditions. This schedule is then given to the property owners to review and begin the process of notifying each tenant 72 hours in advance of the scheduled construction within their unit. Our mantra was to knock once and complete each unit by the end of each day at 4PM and have every reminisce of construction removed and each unit as clean, if not cleaner than, we found it 8 hours prior. This was challenging because we had to complete approximately 30–40 units per day, due to the time constraints issued by the client and the DOJ.
Before entering a unit, a full protection plan needed to be designed and implemented to protect the common areas and the interiors of the apartment — including the occupant’s possessions — from dust, damage and debris. At the end of each day this protection detail is removed and all the common areas are cleaned again before the tenants return from work. There is a high cost associated with this first phase in both material and time.
Manhattan is a vertical metropolis and space comes at a premium. When retrofitting 400+ units you will need a staging area that can hold shipping containers filled with kitchen cabinets, bathroom vanities, marble threshold saddles and other building material to execute the scope of work. Buildings in NYC are not constructed to have extra storage space and every square foot is allocated to maximize the profitability of the project; hence the limited to no storage space for a contractor to stage and store their material.
With 18 wheeler semi trucks filled with building material and no place to store it, a logistical problem presented itself. I was unable to capture enough space inside the building, so I had to get creative and look for alternative solutions. I began approaching parking garages in the building and surrounding areas to lease space to store our building materials. I was even persistent enough to convince the building maintenance teams to allow me to store vanities and kitchen cabinets in their workshops temporarily. This was certainly a learning curve on strategically delineating the building’s operations and tenants’ ease of access to their amenities and apartments without disruption — especially when renovating the main entrance lobbies.
While all of the pre-construction work was a bit challenging from a logistical aspect, the true challenge was the documentation requested by the Client and the DOJ. The existing condition and remediation of every unit had to be documented with photographs and measurements, and with each unit containing up to 6–10 non-compliant conditions, it easily equated to over 3,500 conditions to document and photograph; a paperwork nightmare.
My superintendents and PMs were using printed excel sheets with apartment numbers and taking pictures with their phones and a Post-it with the apartment # and each condition on it. I had to review all of the field reports and look at thousands of pictures to organize the data. At first I was using MS Excel to document each apartment with line items of each condition and hyperlinking a photograph of each condition associated with each line item. This proved to be very time consuming and inefficient. I looked into some project management software to ease the task, but none had the flexibility or the custom options needed for this particular task or data collection.
I needed to find a solution for this problem; it was consuming manpower in the back office just trying to keep the data current and organized from the field to the office and submitting weekly reports to the client was a painful process. My solution was to create an application that my project managers and superintendents could use on an iPad in the field. So I tapped into my old programming days to build an app for this exact purpose.
This application was designed and programmed to streamline the process: As each unit and condition was completed, users could check off the completed line items and input the dimensions with before and after pictures, along with comments and conflicts. This data was then instantly uploaded to our servers SQL Database and populated a template that I designed to manage and document the project’s day-to-day activity, field reports and project progress. The app also monitored material consumption, tenant interaction, vendor conflicts and interaction. The client would then receive weekly, user-friendly reports that documented all of their requirements for reporting to the DOJ, then submit the report to the DOJ to certify that all items listed within the consent decree had been cured.
There are an abundant amount of details about the work performed and how the firm saw a problem and worked as a team to develop solutions. I am skipping over a ton of aspects and hurdles associated with these types of projects that are informative and vital to any developer, building owners and contractors that are facing such monumental tasks on retrofitting Class A multifamily building with 250+ units; and perhaps that is a story for another time.
This was a great experience for myself and the firm. We became so efficient at this process that within 4 years, I completed the planning, oversight and execution of over 4,500 units, common areas and lobby renovations for REITs and Hotels in the Northeast. This was quite an accomplishment given the time restraints, documentation requirements and volume of work. After my tenure with the firm, I have consulted and completed several projects for hotel groups in NY, LA and Houston.
And while this particular situation was a very large case, it was most certainly not the only one. In recent years, many lawsuits have been filed against multiple developers and design professionals for not complying with Title III, requiring millions of dollars in retrofitting thousands of housing properties across the country. Some of the nation’s largest developers — Archstone Smith, Edward Rose & Sons and Bozzuto & Associates to name a few — have come under attack from disability advocacy groups and the Department of Justice.
These New York developers have all been designing and constructing their buildings in accordance with Local Law 58, and what makes the situation so serious is the sheer amount of buildings that have been built in New York City that could potentially be non-compliant with the ADA’s standards. According to a New York Times article, President of the Real Estate Board, Steven Spinola, stated that, “If there’s a decision that Local Law 58 does not meet the criteria for apartments’ being accessible, you could easily argue that every building built since 1991 wasn’t built in accordance with the federal guidelines.”
Because of how widespread this issue is, it has cost millions of dollars in settlement and renovation fees. For example, a lawsuit against Archstone Smith ended in the company spending $21 million on renovations, and an additional $1.4 million in damages and legal fees. These lawsuits can create months of legal battles and disputes, ultimately leaving the developers to pay large sums of money.
For any real estate developers, portfolio managers and building owners, the best advice to take from these situations is that ADA compliance is a critical component of pre-construction and the drawing review phase. Developers should always have a third party review their architect’s plans for proper compliance with all city, state and federal laws and regulations.
