The document provides recommendations from the Boston Center for Independent Living and Community Access Project to the Massachusetts Architectural Access Board regarding accessibility variances requested for the Wayne Apartments project. It recommends: [1] continuing the variance for accessibility requirements related to existing buildings but requiring more analysis of feasibility from the applicant; [2] denying the variance request to consider all buildings as one complex; and [3] continuing variances for the percentage of accessible units and accessible entrances but requiring the applicant to provide more information on maximum achievable accessibility. It expresses concerns about the need for accessible housing in the area and argues the applicant needs to demonstrate infeasibility before being granted any variances.

1. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locations
May 9, 2012
FROM: Boston Center For Independent Living and Community Access Project
Karen Schneiderman, Senior Advocacy Specialist Eileen Feldman, Director
60 Temple Place P.O. Box 434
Boston, MA 02111 Somerville, MA 02143
TO: MA Architectural Access Board
Thomas Hopkins, Executive Director
Donald Lang, Chair
One Ashburton Place - Room 1310
Boston, MA 02108
RE: Public Comments on V12-102, Wayne Apartments Project/Wayne Apartments Project LP
One John Eliot Square
Roxbury, MA 02119
Dear AAB Board and Staff,
The Boston Center for Independent Living and the Community Access Project have a partnership in
reviewing, analyzing and providing comments and recommendations regarding architectural accessibility
topics impacting the Greater Boston area. We submit the following recommendations regarding AAB
Docket #V12-102 for the Wayne Apartments Project for the Board's review and for inclusion in the Hearing
packet 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 cost
estimates regarding "Unfeasibility/Cost Required" for each of the site locationsin this portfolio that contain
10 or more units (18 out of the 26 sites)
o submit information showing how maximum feasible accessibility in all public and common
areas (including accessible routes), plus 5% Group 2A units at each of these sites can be achieved by the
conclusion 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 demonstrate
with reasonable certainty that there is a lesser need for Group 2A units in the locations in question. In this
case, the municipalities are: Roxbury, Dorchester and Mattapan. The fact is that there is an urgent need for
accessible 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. During
the year we will directly assist approximately fifty people to find housing, and many others, perhaps
hundreds, will be indirectly assisted. There remains a severe shortage of affordable, accessible, and
integrated units in the city and surrounding communities. One serious result is that people live in
inaccessible units, perhaps having to use a portable commode or not being able to simply enter and exit
their 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
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2. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locations
nursing homes, and far and away the biggest barrier to getting out is adequate housing—there are ample
services 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, 2012.1
This project, although listed as a Mod Rehab in this application, falls under HUD's Section 504 Substantial
Alterations (24CFR 8.23(a) accessibility regulations; and, the provisions of 24 CFR 8.22(a) and (b) for new
construction apply.2
The 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 and
administrative burden (24 CFR 8.23(b)(1); or, exceptions regarding alterations that require removing or
altering load-bearing structures (24 CFR 8.32(c).
HUD's Office of Fair Housing and Equal Opportunity (FHEO) enforces the Fair Housing Act and other civil
rights laws. When Fair Housing and civil rights violations are found, all interested parties are potentially
held responsible. Review and approval by a government agency is irrelevant as a defense for design and
construction 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 certain
accessibility 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 the
application.
Therefore, we strongly recommend that if any Variances are granted on this Project, that all due diligence
be applied in the evaluation phase, to ensure that maximum feasible accessibility retrofits will be achieved
upon completion. Not only should potential applicants and residents with physical and sensory disabilities
be provided equal opportunities to use and enjoy the units, common areas of these dwellings and sites; and
participate in, and access other activities conducted and sponsored by this applicant; but the applicant must
also ensure that all visitors to these sites have maximum feasible access to each type of common area and
amenity that is provided to the public.4
On the next pages are discussions for each of our three recommendations.
1
A limited review of the Boston Housing Authority's online inventory of UFAS- accessible units shows that, of the
units 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 HUD's Section 504 requirements, enforeceable since June 2,
1988. Regarding Alterations, HUD regulations state: If the project involves fewer than 15 units or the cost of
alterations is less than 75% of the replacement cost of the completed facility and the recipient has not made 5% of its
units in the development accessible to and usable by individuals with disabilities, then the requirements of 24 CFR
8.23(b) - Other Alterations apply.
However, "alterations are substantial if they are undertaken to a project that has 15 or more units and the cost
of the alterations is 75% or more of the replacement cost of the completed facility. [See 24 CFR 8.23(a)]. In such a
case, 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. See
for example: Fair Housing Council et. al. v. Village of Olde St. Andrews, Inc. et. al (2000); and, U.S. v. Quality Built
Construction, Inc. et. al. (2003).
4
UFAS 4.1.3 (1)(b). see http://www.access-board.gov/ufas/ufas-html/ufas.htm
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3. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locations
1. 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 to
ensure 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 ramps
would be inaccessible at some locations, or would encroach on public sidewalk, and that lifts within
vestibules 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 AAB
with a detailed analysis for a minimal clear width, ground and floor surfaces, level changes, slope and cross
slope, vertical clearance and protruding objects to ensure that all feasible options have been considered for
the exterior of the buildings.
Interior analysis: the applicant's Exhibits 1A - 1D space matrix shows that there is
unnaccounted-for additional square footage in each building. Space that is not currently accounted for in this
application's square footage matrix (exh. 1A - 1D) includes: units currently listed as abandoned; any floors without
active units; any units that have remained vacant since the last expiration of the HAP contract; and, all basement
spaces.
On page 3 of the Variance application, the unit breakdowns of Wayne Apartment's accessible units are
summarized. Out of a total 349 units, only 18 units are listed as "HP." The applicant provides no
information regarding how such units were evaluated for accessibility.
Summary: We recommend that the Board continue this part of the Variance application, and require
applicant to provide a detailed analysis of infeasibility, taking into account all possible space8
reallocations and redesigns that may be possible, in exterior and interior portions of the site, prior to
completion of this project.
5
UFAS 4.1.1(2). see http://www.access-board.gov/ufas/ufas-html/ufas.htm
6
UFAS 4.3.2. see http://www.access-board.gov/ufas/ufas-html/ufas.htm
7
Space that is not currently accounted for in this application's square footage matrix (exh. 1A - 1D) includes: units
currently listed as abandoned; any floors without active units; any units that have remained vacant since the last
expiration 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 require
accessibility to the public or beneficiaries or result in the employment or residence therein of individuals with physical
disabilities" (24 CFR 8.32(6)).
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4. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locations
2. 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-municipal
portfolio:
• 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 multiple
phases, 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 HUD's definition of a single site or property,
because the 26 geographically distinct sites cannot be considered either "a single site;" or, "the same site."10
3. 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 § 3.5
9
LIHTC Database, p. 13, note 6. SEE http://www.huduser.org/Datasets/lihtc/topical9509.pdf
10
However, the applicant might examine the possibility that, if there are several buildings that expire together, and
are annually renewed as one HAP contract, these might be grouped together as "developments." (per Section 504)
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5. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locations
Summary
While we recognize that these are not ideal conditions, an investment in maximum feasible accessibility
retrofits at this time should be encouraged, while this entire portfolio is receiving new life. We encourage
the applicant to go "back to the drawing board" and take a second look at the space reallocation
possibilities in the interiors of these buildings; and the landscaping/walkway options that may be available
around 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 involved
in the application or in the planning, development, implementation of the project; and, any other person
who has a financial interest in this project to consider the positive impact this rehabitation project can have
on these neighborhoods, should the diversity of children, adults and older people with disabilities gain
these 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, which
have already been in effect for 24 years11. Accessibility retrofits to the common and public areas, and
ensuring that the 5% requirement is met, at least in buildings with 10 or more units, can go far in helping
Wayne Apartments be a good neighbor and make sure that all parties in the Master leases can stay in
business.
It is our hope that the State Board will be able to guide this applicant to prioritize an outcome that includes
additions and improvements that will achieve the maximum accessible housing conditions possible
throughout this project portfolio that impacts low-income neighborhoods in Roxbury, Mattapan and and
Dorchester.
Thank you for your consideration of these comments from BCIL and CAPS. Please include this document
in full within all Hearing information provided to the Board; within the packets distributed at Public
Hearings 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 Advocate
Community Access Project Boston Center for Independent Living
CAPSom @verizon.net KSchneiderman@bostoncil.org
11
HUD's Section 504 implementing regulations became enforceable on June 2, 1988.
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6. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locations
APPENDIX ONE
Applicant should conduct a detailed analysis of how they and their PHA and State partners will achieve
minimal Federal and State accessibility and civil rights obligations; including what types of waivers will be
sought alongside of this AAB Variance application.
The AAB, as a State agency, must not make any decisions that restrict, or have the effect
of restricting, the availability of housing choices based on race, color, religion,sex, disabilities, familial
status, 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 HUD's 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
• HUD's definition of "accessible" is as follows:
o Accessible – When used with respect to the design, construction, or alteration of
housing and non-housing programs, “accessible” means that the program or portion of the program when
designed, constructed, altered or adapted, can be approached, entered, and used by individuals who use
wheelchairs. A program that is designed, constructed, altered or adapted to be in compliance with the
Uniform 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. Alterations
of facilities designed before July 11, 1988 shall conform to the provisions of the UFAS to the maximum
extent practicable.
12
overview, HUD Compliance Sanctions: http://www.hud.gov/library/bookshelf01/compsanctions.cfm
13
see also www.olmsteadva.com/mfp/downloads/HUDSection504FairHousingandADA.ppt
14
see note 3.
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7. BCIL/CAPS Recommendations to MAAB on AAB Docket #V12-102, Wayne Apartments, multiple locations
STATE 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 State's 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
PHA's 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 state's 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) and
Margeaux LeClair (Counsel/Specialist, DHCD) during the June 2011 meeting at
http://www.slideshare.net/MAPCMetroBoston/building-sustainable-communities-of-opportunity. this ppt provides an
overview of AFFH and Civil Rights obligations (but does not cite applicable regulations)
16
for more information about AFFH, also please see E.O. 11063
http://www.hud.gov/offices/fheo/FHLaws/EXO11063.cfm and about promoting fair housing, please see:
http://www.hud.gov/offices/fheo/promotingfh.cfm
17
full text at: http://www.gpo.gov/fdsys/pkg/CFR-2004-title24-vol1/xml/CFR-2004-title24-vol1-sec5-105.xml
18
Massachusetts Qualified Allocation Plan (2010) at http://www.docstoc.com/docs/45315131/Final-2010-Qualified-
Allocation-Plan
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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 and
surrounding communities." - - Bill Henning, Executive Director of the Boston Center for Independent
Living. May 8, 2012
In the Greater Boston area, the online listing of the Boston Housing Authority's (BHA) UFAS inventory may
be outdated; however, it demonstrates that there were only a handful of new BHA UFAS units created in
Roxury, Dorchester and Mattapan over the last decade. Reliable information regarding totals and % of
accessible 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 housing
units. Below, is a breakdown of the inventory that has been evaluated for UFAS-accessible units, and is
currently 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 UFAS
Wayne Apartment's totals: On page 3 of the Variance application, the unit breakdowns of Wayne
Apartment's accessible units are summarized. Out of a total 349 units, only 18 units are listed as "HP." The
applicant 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, 2
1BR units in Roxbury and no 1BR units in Mattapan. Wayne Apartments currently offers 14 accessible 2BR
units in Roxbury and none in Dorchester or Mattapan. 7 of the 2BR units in Roxbury offer adaptability for
Hearing impaired tenants; and none in either Dorchester or Mattapan. Wayne apartments currently
provides no Group 1 or 2 3BR, 4BR or 5BR family units in Dorchester, Roxbury or Mattapan. No accessible
units 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.
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