This commentary is by Jonah Richard, a small-scale real estate developer in the Fairlee/Bradford area.
A lot of folks out there are asking where all the affordable housing is, wondering why we aren’t — as a country — building more of it. Construction costs and bureaucratic red tape are often cited as reasons. But that’s not overly helpful. Specific examples are.
A great example is accessibility requirements.
In Vermont, there are three sets of legislation that govern accessibility requirements: the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA), and Vermont’s Access Rules.
Both the ADA and FHA are federal legislation and each comes with separate design manuals that are hundreds of pages long. As originally written, the ADA does not pertain to privately funded residential buildings. And the FHA applies only to residential buildings first occupied after 1991.
The Vermont Access Rules wildly expand the scope of the ADA and FHA by 1) redefining ADA public accommodations to encompass most buildings except farms, houses, and multifamily buildings with three units or fewer; and 2) eliminating the post-1991 occupancy requirement of a building for the FHA accessibility requirements to be triggered.
All of a sudden, both the ADA and FHA design guidelines apply to all multifamily buildings with four or more units. Even renovations of old buildings.
Every. Single. Multifamily. Building. (With four units or more).
Does this make sense for new construction? In general, I’d say so. It’s easier when building new to plan for the nuances and space requirements imposed by federal design guidelines.
My biggest concern is how both sets of “War and Peace”-length guidelines are applied to renovations of existing buildings constructed prior to 1991. The instant a renovation permit is submitted, the developer becomes responsible for bringing the in-scope units up to federal standards.
The thing is, most of these old buildings were constructed without accessibility in mind. Rectifying that can require serious work: moving load-bearing walls, replumbing entire apartments, constructing custom access ramps. The list goes on.
And here’s the best part.
As if out of a complete disregard to all those in need of affordable housing, a seemingly innocuous question in the Vermont Access Rules’ FAQ section gets the following answer: During alterations or renovations, 20% of the project cost must be applied to access. ADA §35.151 (4) (iii).
Nowhere in the actual rulebook itself is this 20% requirement mentioned. Almost mischievously, it’s buried on the second-to-last page of the FAQ.
And, although buried, it’s heavily enforced. Just ask any Vermont contractor and they’ll tell you the general rule of thumb is that at least 20% of overall project costs be put toward accessibility. Even confirmed by a fire marshal.
But, wait. It gets better.
You noticed that §35.151 reference above? That’s a section of the federal ADA regulation. Here’s what it says: “Alterations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area.”
It then goes on to say that modifications beyond that which are deemed disproportionate are not required. Yes, you read that correctly. Not required.
The Vermont Access Rules cites a paragraph in the federal statute that literally refutes the entire premise of the intended rule.
So, to summarize, the federal government placed a maximum threshold for accessibility spend at 20% of the cost to alter the primary function area (that is, the unit). Yet then Vermont steps in, expands the reach of the ADA to include small multifamily renovations and modifies the federal threshold to make it a minimum of 20% spend when compared to total costs across all units.
Out of the gate, this adds 20% to any renovation budget. And there’s a very clear line to be drawn between that and having to increase rents by 20%.
No wonder there’s a shortage of affordable housing!
I don’t know why Vermont decided to institute such draconian accessibility requirements. For new construction, I’m on board. But I disagree with Vermont’s decision to apply both FHA and ADA design guidelines to older buildings. Especially given the housing shortage across the state. Ultimately, all this does is impede the creation of new housing stock from existing buildings while making the apartments that do get renovated more expensive.
My feeling is that we should just leave the accessibility requirements to the newer residential buildings, as the FHA originally intended. Or at least come up with an expedited waiver process for the countless units that are ill-suited for accessibility upgrades.
What’s almost comical is that, as a response to added cost pressures, the state will launch the Vermont Housing Improvement Program in 2022 to give landlords $30,000 for each vacant unit they bring online. The grants aim to help with code improvement projects, a big component of which revolves around accessibility requirements.
To me, that’s a bit like smoking a pack of cigarettes a day but thinking all is well because you run a mile in the morning. All said and done, you’re not really addressing the problem at hand. Only further perpetuating it through blissful ignorance.
This commentary was originally published at brickandmortar.substack.com.
