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PARTIES TO THE SETTLEMENT AGREEMENT:
JOHNSTON MERLE HAY & 57TH, L.L.C.
C/O CRAIG REID – PERRY REID PROPERTIES
9200 Andermatt Drive
Lincoln, Nebraska 68526-9639
DALLENBACH LARSON DEVELOPMENT, L.L.C.
ATTN: STEVEN DALLENBACH
P.O. Box 267
Johnston, Iowa 50131-0267
ALLER DESIGN GROUP, L.L.C.
1840 NW 118th Street, Suite 220
Clive, Iowa 50325-8275
ANGELA JACKSON, COMMISSIONER
Iowa Civil Rights Commission
400 East 14th Street, Room 201
Des Moines, Iowa 50319-0201
400 East 14th Street, Room 201
Des Moines, Iowa 50319-0201
Complainant is a member of the Iowa Civil Rights Commission (ICRC). As a member, Complainant has the authority to file a complaint alleging a discriminatory practice in violation of the “Iowa Civil Rights Act of 1965,” Iowa Code Chapter 216. Complainant alleged Respondents designed and constructed covered multifamily dwellings in violation of the design and construction accessibility requirements of the Iowa Civil Rights Act (ICRA) and the federal Fair Housing Act (FHA). Complainant alleged Respondents violated the “accessible and usable public and common use areas,” the “light switches, electrical outlets, thermostats, and other environmental controls in accessible locations,” and “usable kitchens and bathrooms.”
Complainant specifically alleged, in Unit 107, 5719 NW 57th Avenue, Johnston Gardens Apartments (“Johnston Gardens”), two features in the common areas and three features within one of the covered ground-floor units appeared inaccessible to a person utilizing a wheelchair for mobility – (1) the heights of the midlines of the keyholes at the mailbox compartments assigned to Units 101 and 102 at the kiosks each of the three buildings were measured at 58” (Unit 101), and 55” (Unit 102) – all of which are higher than the 54”-maximum allowed for a parallel approach by persons using a wheelchair; (2) the height of the curb in front of the mailbox kiosks is at least 5” – which is greater than the ¼”-maximum allowed by ANSI for changes in level along accessible routes – and the loose gravel to the left and right of the kiosks – which does not meet ANSI’s requirement for a “stable, firm, and slip-resistant” surface – render the mailbox kiosks inaccessible to persons using a wheelchair; (3) the clearance from the midline of the sink to the wall in Unit 107 was measured at 21 3/16”, which is less than the 24-inch clearance required for a parallel approach needed because the sink was not removable; and (4) the height of the thermostat top controls in Unit 107 was measured at 54”, which is more than the allowed maximum height of 48”.
Description of the Subject Property
Johnston Gardens consists of three buildings – 5705 NW 57th Avenue, 5713 NW 57th Avenue, and 5719 NW 57th Avenue. The three residential buildings and common areas will be required to meet the same accessibility requirements of the ICRA and FHA. The certificate for Building 5719 [tested building] was issued on December 14, 2016; for Building 5705 on May 18, 2017; and for Building 5713 on June 27, 2017, which were signed by Douglas Sandvig, Building Official for the City of Johnston.
The scope of the current agreement includes all of the dwelling units and the public and common use areas, including the leasing office, dumpsters, and the mailbox kiosks adjacent to the main entrance to the subject property.
The dwelling units at Johnston Gardens consist of three floor-plan types. The table below lists the unit floor-plan type, each tested unit’s building and number, the total number of units of each floor-plan type by building, and total number of units of each floor-plan type.
Inspected Building Numbers/
Total Units Per Type by Building
Total Units Per Type
5719 / 107
5713 / 104
5719 / 108
When asked in the questionnaire what was true or false about the allegations, all Respondents answered:
1. We would like to schedule a site visit at the property with Iowa Civil Rights inspector to verify accessibility compliance or issues that may need resolved.
2. See above
Report of Preliminary Findings:
ICRC Investigators inspected 8 units at Johnston Gardens, as well as the public and common use areas in and surrounding the complex. After conducting an onsite inspection of the units listed in the table above, and the public/common use areas, ICRC Investigators found and reported the following deficiencies:
The heights of the towel bars in these inspected units were not designed or built to be compliant with maximum height requirements. As built, the towel bars are too high, rendering them unusable by persons using wheelchairs.
Respondents’ Response to Report of Preliminary Findings:
Respondents submitted the following responses to the reported deficiencies:
Respondents stated in their written responses to the ICRC questionnaire According to the plans submitted by Respondents, all units were built in accordance with the scoping requirements of the 2012 International Building Code [IBC 2012], which incorporates the standards of the 2009 American National Standards [ANSI 2009] for guidance on the technical requirements [i.e., the dimension requirements]. Neither the IBC 2012 nor the ANSI 2009 is one of the safe harbors accepted by HUD. Therefore, the Manual and the Guidelines, which incorporate ANSI 1986 for some of the technical requirements, must be used to assess and determine compliance with the ICRA and FHA, not IBC 2012 or ANSI 2009.
The public areas must meet the requirements of the ADA in addition to those of the FHA, as people other than residents or residents’ visitors will visit or frequent those areas. The common use areas, however, such as the exterior parking spaces and sidewalks adjacent to Buildings 5705 and 5713, mailbox kiosks, and dumpsters by the FHA since they are only for use by the residents of Johnston Gardens and their guests. The ADA will only be referenced in the current agreement for the public areas, which include leasing office, exterior parking spaces and sidewalks adjacent to Building 5719 – where the leasing office is located – and the hallways. Finally, the requirements of the ADA will be presented as stated in the “2010 American with Disabilities Act Standards: 2004 ADAAG for Titles II and III Facilities” (ADAAG). See 42 U.S.C. 12204, Part 1191, Appendix A, and 42 U.S.C 12186(b); 28 CFR Part 36, Appendix B.
Following is the assessment of Respondents’ proposed retrofits, based on the scoping and technical requirements of the 2010 ADAAG, the Manual, and ANSI 1986:
Predetermination Settlement Agreement
A complaint having been filed by Complainant against Respondents with ICRC under Iowa Code Chapter 216 and there having been a preliminary inquiry, including an on-site inspection of the subject property, the parties do hereby agree and settle the above-captioned matter in the following extent and manner:
Acknowledgment of Fair Housing Laws
1) Respondents agree there shall be no discrimination, harassment, or retaliation of any kind against Complainant or any other person for filing a charge under the “Iowa Civil Rights Act of 1965” (ICRA); or because of giving testimony or assistance, or participating in any manner in any investigation, proceeding or hearing under the ICRA; or because of lawful opposition to any practice forbidden by the ICRA. Iowa Code § 216.11(2).
2) Respondents acknowledge the ICRA makes it unlawful to discriminate in the terms, conditions or privileges of sale or rental of a dwelling or in the provision of services or facilities in connection with the dwelling because of race, color, creed, sex, sexual orientation, gender identity, national origin, religion, disability, or familial status. Iowa Code § 216.8(1)(b).
3) Respondents acknowledge the ICRA makes it unlawful to sell, rent, lease, assign, sublease, refuse to negotiate, or to otherwise make unavailable, or deny any real property or housing accommodation or part, portion, or interest therein, to any person because of the race, color, creed, sex, sexual orientation, gender identity, religion, national origin, disability, or familial status of such person. Iowa Code § 216.8(1)(a).
4) Respondents acknowledge the Fair Housing Act (FHA) makes it unlawful to sell, rent, lease, assign, sublease, refuse to negotiate, or to otherwise make unavailable, or deny any real property or housing accommodation or part, portion, or interest therein, to any person because of the of race, color, religion, sex, familial status, or national origin. 42 U.S.C. 3604(f)(1)(a) (§ 804(f)(1) of the Fair Housing Act).
5) Respondents acknowledge the FHA and ICRA make it unlawful to refuse to make reasonable accommodations in rules, policies, practices, or services, when the accommodations are necessary to afford the person equal opportunity to use and enjoy a dwelling and to the extent that the accommodation does not cause undue financial or administrative burden or fundamentally alter the nature of the provider’s operations. 42 U.S.C. 3604(f)(3)(b) (§ 804(f)(3)(b) of the Fair Housing Act); Iowa Code § 216.8A(3)(c)(2).
6) Respondents acknowledge the FHA and ICRA make it unlawful to discriminate against another person in the terms, conditions, or privileges of sale or rental of a dwelling or in the provision of services or facilities in connection with the dwelling because of a disability. 42 U.S.C. 3604(f)(2)(a) (§ 804(f)(2)(a) of the Fair Housing Act); Iowa Code § 216.8A(3)(b)(1).
HUD has described these accessibility requirements via regulation and in several publications, including the “Final Fair Housing Accessibility Guidelines.” 24 C.F.R. Part 100.200 et seq.; 56 Fed. Reg. 9,472. In the “Guidelines,” HUD presented the seven specific requirements as:
Requirement 1 – Accessible building entrance on an accessible route.
Requirement 2 – Accessible and usable public and common areas.
Requirement 3 – Usable doors.
Requirement 4 – Accessible route into and through the covered dwelling unit.
Requirement 5 – Light switches, electrical outlets, thermostats and other environmental
controls in accessible locations.
Requirement 6 – Reinforced walls for grab bars.
Requirement 7 – Usable kitchens and bathrooms.
Voluntary and Full Settlement
12) Because, pursuant to Iowa Code §216.15A(2)(d), the ICRC has not determined that disclosure is not necessary to further the purposes of the ICRA relating to unfair or discriminatory practices in housing or real estate, this Agreement is a public record and subject to public disclosure in accordance with Iowa’s Public Records Law, Iowa Code Chapter 22. See Iowa Code §22.13.
13) Complainant hereby waives, releases, and covenants not to sue Respondents with respect to any matters which were or might have been alleged as charges filed with ICRC, the Office of Fair Housing and Equal Opportunity, Department of Housing and Urban Development, or any other anti-discrimination agency, subject to performance by Respondents of the promises and representations contained herein. Complainant agrees any complaint filed with any other anti-discrimination agency, including the Office of Fair Housing and Equal Opportunity, Department of Housing and Urban Development, which involves the issues in this complaint, shall be closed as Satisfactorily Adjusted.
Fair Housing / Accessible Design and Construction Training
The training shall be conducted by a qualified person, approved by ICRC or the U.S. Department of Housing and Urban Development. Additionally, attendance at one of the training events offered by Fair Housing Accessibility First – information about which is available online at http://www.fairhousingfirst.org/training/calendar.html - will fulfill the requirement for this term.
Required Modifications or Retrofits
Accessible and Usable Public and Common Use Areas – Parking Area
(a) The parties agree that although both parking spaces and the adjoining access aisle – adjacent to the east of Building 5719 – meet the 2010 ADAAG’s dimensions for Van-Accessible parking spaces and access aisles, neither one of these parking spaces had the required signage designating it as “Van-Accessible.”
(b) The parties agree the height to the bottom edge of the signs designating the two parking spaces – described in “(a)” paragraph above – as reserved for persons with disabilities is less than the minimum height of 60” allowed by 2010 ADAAG.
(c) Respondents agree they will add “Van Accessible” signage such that the bottom edge of these signs is no less than the 60”-minimum allowed by 2010 ADAAG
(d) Respondents agree they will increase the heights of the existing signs at the parking spaces described in “(a)” paragraph above, such that the bottom edge of these signs is no less than the 60”-minimum height allowed by 2010 ADAAG.
(e) Respondents agree to complete the retrofit described in the current section within 60 days from the date of the Closing Letter from ICRC.
Accessible and Usable Public and Common Use Areas – Mailboxes
(a) The parties agree the mailbox compartments are unusable for someone in a wheelchair because the mailbox kiosks housing these compartments are installed no less than 36” behind a sidewalk curb – which exceeds the 24”-maximum depth allowed by ANSI 1986 for obstructions.
(b) Respondents agree to:
Light Switches, Electrical Outlets, Thermostats, and Other Environmental Controls in Accessible Locations – Thermostats
(a) The parties agree the height of the top thermostat controls in all inspected units exceed the maximum height of 48”, as allowed by the Manual.
(b) Respondents agree they will vertically relocate the thermostats in all units to a lower height, such that the display screen and all operating buttons do not exceed maximum height of 48”, as required by the Manual.
(c) Respondents agree theywill complete the retrofit described in the current subsection at all ground-floor units within one year from the date of the Closing Letter from ICRC or sooner if requested by a tenant with a disability.
Usable bathrooms – Bathroom Sinks
(a) The parties agree the heights to the top of the rim at the sink of the Specification-B (Master) bathrooms - which have removable vanity cabinets – of all inspected units, were measured at more than the 34”-maximum height for sinks at Specification-B bathrooms with removable cabinets, as required by the Manual.
(b) Respondents agree they will replace the removable vanity cabinets with shorter removable vanity cabinets at the Specification-B bathrooms of all ground-floor units in Buildings 5705, 5713, and 5719, such that the height to the top of the rim of the bathroom sink will be no more than 34” above the finished floor as required in the Manual, and as shown in page 5 of the current agreement.
(c) Respondents agree theywill complete the retrofits described in the current subsection at all ground-floor units within one year from the date of the Closing Letter from ICRC or sooner if requested by a tenant with a disability.
Usable Bathrooms – Towel Bars
(a) The parties agree bathroom towel bars in all inspected units are unusable for persons using wheelchairs because they are installed at a height of 54 ½” above toilets that have a depth of 28” – which exceeds (i) the 54-inch maximum height if there is sufficient clearance for persons who use a wheelchair to make a parallel approach; and (ii) the 24”-maximum reach depth over obstructions, as allowed by ANSI 1986.
(b) Respondents agree they will reinstall the towel bars at a height of no greater than 54 inches on a different wall away from the toilets in the bathrooms of all ground-floor units – such that there is sufficient clearance for persons who use a wheelchair to make a parallel approach – as required by ANSI 1986.
(c) Respondents agree theywill complete the retrofits described in the current subsection at all ground-floor units within 60 days from the date of the Closing Letter from ICRC.
Required Timelines for Completion of Modifications or Retrofits
18) Respondents agree to notify all current tenants, via a letter, within 60 days from the date of the Closing Letter from ICRC about the option to make a reasonable accommodation request because of a disability for any of the above-required modifications or retrofits in their units, at no charge to the tenants.
19) Respondents agree to complete all retrofits requested as a reasonable accommodations within 14 days from the date the request is submitted by the tenant.
20) Respondents agree, for any tenant who makes a reasonable modification request that concerns one or more of the above-required modifications or retrofits, they will allow the tenant to make the decision whether the above-required modifications or retrofits are made during their tenancy. Respondents also agree those tenants who make that decision will be allowed to remain in their units while the renovations are being completed, so long as their continued stay is safe and does not unduly disrupt the renovation work. If their continued stay is not safe or unduly interferes with renovation work, Respondents agree to move the affected tenants to another suitable unit on a temporary basis, until the unit is made safe or the renovation work is completed. Respondents agree to pay all costs generated by such move.
18) Respondents agree to notify ICRC when they have completed the required modifications or retrofits for each of the units and the public and common use areas. Such notification shall be made within 90 days of completion. These required notifications to ICRC after each unit or common area is modified or retrofitted will continue until all required modifications or retrofits have been completed in all applicable units.
20) Respondents agree, as the required modifications or retrofits are made to a particular unit, ICRC may then inspect such unit, and then report the results of its inspection, addressing any outstanding deficiencies, in writing and within 30 days of the inspection, to Respondents. If the inspection indicates outstanding deficiencies, Respondents shall correct all such deficiencies within a reasonable period of time as determined by ICRC.
21) The sale or transfer of ownership, in whole or in part, by any owner of the subject property will not affect any obligation to modify or retrofit the subject property as specified in this Agreement, unless Respondents have obtained, in writing, as a condition of sale or transfer, the purchaser or transferee’s commitment to be bound by the terms of this agreement to complete all required modifications or retrofits as specified in this Agreement.
Johnston Merle Hay & 57th, L.L.C. . Date
Dallenbach Larson Development, L.L.C. Date
Aller Design Group, L.L.C. Date
Angela Jackson, Commissioner Date
Kristin H. Johnson, Executive Director Date
IOWA CIVIL RIGHTS COMMISSION
 See Iowa Code §§216.8A(3)(c)(3)(a) [Requirement 2 – Accessible and Usable Public and Common Use Areas]; 216.8A(3)(c)(3)(c)(ii) [Requirement 5 – Light Switches, Electrical Outlets, Thermostats, and Other
Environmental Controls in Accessible Locations]; and 216.8A(3)(c)(3)(c)(iv) [Requirement 7 – Usable Kitchens and Bathrooms].
 Henceforth, the buildings will be referred to as “Building 5705,” “Building 5713,” and “Building 5719.”
 See Appendix B for floor plans.
 See Appendix A, Photo 1A.
 See Appendix A, Photos 1B and 1C.
 See Appendix B.
 See Appendix A, Figure 3A for location of mailbox kiosks as captioned in the site plans.
 See Appendix A, Photos 2C, 2D, and 2E.
 See Appendix B.
 See Appendix A, Photo 3A.
 See Appendix B.
 See Manual at page 7.52.
 See Appendix A, Photo 4A.
 See Appendix B.
 See Appendix A, Photo 5A.
 http://www.fairhousingfirst.org/faq/safeharbors.html (Last visited on March 28, 2014).
 The ADAAG defines “Public Use” as “[I]nterior or exterior rooms or spaces that are made available to the general public. Public use may be provided at a building or facility that is privately or publicly owned.” See “Definitions” on page 47 of ADAAG available online at http://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards_prt.pdf. Therefore, since the hallways and parking spaces are available for use by prospective residents, who are part of the general public, these areas are deemed to be “Public Use.”
 See Manual at page 7.37 for Specification-B bathroom example.