RULES & REGS: Court Rules in Favor of Developers in a Battle Over Fair Housing

By Erika Schnitzer, Associate EditorLas Vegas–In a decision that will affect the statute of limitations in fair housing lawsuits, the U.S. Court of Appeals for the Ninth Circuit has ruled in favor of multifamily developers.The decision–that a disabled person’s right to sue over design-and-construction is limited to two years after a project’s completion–follows the March 25 en banc rehearing of Garcia v. Brockway, a case pitting Salt Lake City-based Disabled Rights Action Committee against multiple defendants who designed and built Craig Ranch Villas in Las Vegas. “This is the definitive ruling on this issue and how it will be applied in the federal courts in the western region,” says Joshua Resiman, a partner in Las Vegas-based Ballard Spahr Andrews & Ingersoll and the defending attorney in the case. “Because it was an en banc decision, it will likely be given extra persuasive weight in other federal courts in the country.” The ruling was a 9-2 decision, with two justices dissenting.The disabled citizens’ rights organization argued that the development violated the Fair Housing Act (FHA) because of inadequate sidewalk wheelchair ramps, a lack of accessible entrances and undersized doorways. “In speaking with industry organizations, there’s a feeling that the FHA is being taken advantage of by plaintiffs that are scouring multifamily housing covered by the FHA in order to push for cash settlements,” says Reisman.The Garcia hearing consolidated two separate cases, both of which involved the legal issue of when the statute of limitations begins to run for a design-and-construction discrimination claim under the FHA. “I think the decision is better for everyone involved,” Reisman tells MHN. “It encourages disabled rights organizations to monitor this type of housing as it’s being built and to get involved early—when problems can be most easily corrected–in the process to make sure the housing is compliant.”Reisman, on behalf of the builder, Michael Turk, argued that the statute of limitations begins immediately upon completion of design and construction and issuance of a final certification of occupancy. The prosecuting attorneys for the Disabled Rights Action Committee argued that the statute of limitations begins when a disabled person reports a violation.”The plaintiff’s interpretation over the statue of limitations would have the exact opposite effect of what they wanted to achieve, because no one would want to be involved in this kind of housing,” Reisman says. “Who would design multifamily projects if you would be subjected to infinite liability?”