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United States v. Shanrie Co.

April 10, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SHANRIE COMPANY, DAN SHEILS, NETEMEYER ENGINEERING ASSOCIATES, INC., AND THOUVENOT, WADE & MOERCHEN, INC., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

ORDER

I. BACKGROUND

Now before the Court is the issue of devising an appropriate remedial plan to address the Fair Housing Act ("FHA") violations at Applegate Apartments. On June 15, 2007 the Court ordered Defendants Shanrie Company, Dan Sheils, and Netemeyer Engineering Associates, Inc. (collectively "Defendants") to submit a proposed remedial plan detailing how they intended to retrofit Applegate Apartments to bring it into full compliance with the FHA. (Doc. 123.) After requesting two extensions, Defendants finally submitted their proposed remedial plan on September 10, 2007. (Doc. 133.) Defendants' plan contained a description of retrofits Defendants proposed making, along with a timetable, as well as arguments as to why Defendants should be excused from remedying all of the FHA violations. The United States filed a response on October 16, 2007. (Doc. 136.) In its response, the United States argued that Defendants should be required to perform all retrofits in a timely manner to bring Applegate Apartments into full compliance with the FHA.

On December 19, 2007 the Court held a final pretrial conference. In the course of that conference, Defendants requested that the Court withhold ruling on the remedial plan until after trial, or at the very least hold an evidentiary hearing on the issue to give Defendants an opportunity to present evidence and arguments. The United States argued that the issue had been fully briefed and requested that the Court proceed with ordering Defendants to implement their proposed remedial plan. Although the Court was hesitant to prolong the process any further, the Court decided to allow Defendants the opportunity to submit a supplemental brief specifically detailing what additional evidence they would offer, if the Court were to hold an evidentiary hearing and the United States was allowed to respond. (Doc. 147.) In addition, the Court directed both parties to address the newly-raised issues regarding violations at Building 7 and 8. On January 7, 2008, Defendants submitted a brief and a declaration by Defendant Dan Sheils (Doc. 149). On January 14, 2008, the United States offered a response and attached a declaration by Gina Hilberry, an expert witness (Doc. 150). The Court addresses each parties arguments below.

II. ANALYSIS

A. FHA Violations at Buildings 7 and 8

1. Handrails at Building 7

Defendants do not dispute that handrails should be installed on the entry ramp to Building 7. They argue, however, that they should not have to install the handrails until after the Court determines whether the ramp at Building 6 needs to be modified, because modifying the ramp at Building 6 will change the configuration of the handrails at Building 7. As discussed below, the Court maintains its previous finding that the ramp at Building 6 violates the FHA because the running slope of the last three feet of that ramp exceeds the maximum ANSI slope for new construction. Therefore, the Court finds that handrails at Building 7 shall be installed and configured to accommodate the modifications of the ramp at Building 6.

2. Accessible Route to Dumpsters

The United States asserts that there are no safe accessible routes to the dumpster that serves Building 7 and 8. The United States argues that Defendants should be required to provide a striped walkway designating a safe route across the parking areas. Defendants maintain that there is no heavy traffic or dangerous condition in the area that would inhibit a person in a wheelchair or other mobility aid from crossing the parking areas to get to the dumpster. Defendant further argues that the striping requested by the United States "would result in a maze of crosswalks confusing to both pedestrians and motorists alike." (Doc. 149, p. 3.) The United States responds that a "single crosswalk - hardly a maze - could be striped to provide access to the dumpster nearest buildings 7 and 8." (Doc. 150, p. 9.) The Court agrees that providing a striped walkway to the dumpster is the best way to ensure the safety of disabled residents who have no other option but to cross the parking lot to get to the dumpster.

3. Accessible Entry Door Thresholds

Lastly, the United States asserts that the entry door thresholds were installed on a lip and, therefore, the threshold in at least four of the units at buildings 7 and 8, as measured by the United States' expert Gina Hilberry, were in excess of the 1/2 " permitted by the Guidelines. Defendants contend that the thresholds are ADA-approved and the only evidence they offer in support of their contention is the declaration of Defendant Sheils who posits that if there are any variations they would be "fractional" at most and within the usual and customary standards. Although the thresholds may be ADA-approved, Ms. Hilberry found that as installed they ranged in height from 1" to 1 1/2 ". While this may seem like a "fractional" difference to Mr. Sheils, it would likely make a significant difference to a person in a wheelchair. The thresholds, as installed, clearly violate the FHA and must be fixed.

B. Supplemental Hearing Unnecessary

Defendants contend that in crafting an equitable remedy, the Court must consider "what is necessary, what is fair, and what is workable." Baltimore Neighborhoods, Inc. v. LOB, Inc., 92 F. Supp.2d 456, 468 (D.Md. 2000) quoting Lemon v. Kurtzman, 411 U.S. 192, 200 (1955). Furthermore, Defendants argue that the "principal limitation on the court's equitable powers is that the relief should be no broader and no more burdensome than necessary to provide ...


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