DATE:
December 19, 2023
TO:
Paul Buddenhagen, City Manager
FROM:
Chadrick Smalley, Community Development Director
SUBJECT:
Study Session: Multifamily And Commercial Accessibility Recommendation
This item offers the City Council the opportunity to discuss and advise staff on options related to City accessibility requirements for existing buildings.
BACKGROUND
On July 5, 2023, Councilmember Kaur requested and received majority support for a future study session on a potential ordinance to update all existing buildings to current Americans with Disabilities Act (ADA) standards. Staff secured the resources of West Coast Code Consultants as accessibility experts for input and to provide analysis of data. In considering a potential ordinance, there are two implementation options and several questions from staff for consideration. Further direction from the City Council is necessary to identify the scope of a potential ordinance should the Council want staff to develop one.
Regulatory Context
There are several existing laws with the primary intent of prohibiting discrimination against individuals with disabilities, which promote equal opportunity, full participation, and inclusion for persons with disabilities in various aspects of American society. The laws at the Federal and State levels that regulate discrimination against persons with disabilities are:
• The California Fair Employment and Housing Act (FEHA) which prohibits discrimination because of a disability for people in all aspects of housing (including rental, lease, terms and conditions, etc.) related to the sale, rental, or occupancy of most housing accommodations in California, including single-family homes, multi-family homes, condominiums, apartments, short-term rentals, mobile homes, subsidized housing, dormitories, sober living facilities, group homes, and other residential use types. The Department of Fair Employment and Housing (DFEH) enforces the FEHA. • The ADA prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government programs and services. The United States Department of Justice enforces regulations governing state and local government services (Title II) and public accommodations (Title III).
State mandates require the City to enforce Title 24 Part 2 of the California Building Code (CBC), including Chapters 11A and 11B which are focused on disabled access compliance for housing accessibility and accessibility to public buildings, respectively.
Chapter 11A of the CBC is written and adopted by the California Department of Housing and Community Development (HCD). It regulates residential housing accessibility for newly-constructed “R-2” occupancies (which are buildings with three or more apartment units, or four or more condominiums), new common use areas servicing existing multifamily dwellings, additions to existing buildings, where the addition alone meets the definition of a covered multifamily dwelling, and buildings where portions of the building’s exterior is preserved but the interior of the building is removed, including all structural portions of floors and ceilings. In the latter case, the building is considered a new building for determining application of Chapter 11A. Existing residential facilities, along with single family dwelling units and duplexes, do not fall under the scoping or requirements of CBC Chapter 11A.
Chapter 11B of the CBC regulates accessibility to public buildings, “public accommodations” (as defined by the CBC), commercial buildings, and public housing. The trigger for compliance with CBC Chapter 11B is all areas of newly designed and newly constructed buildings and facilities, and altered portions of existing buildings with construction work that requires a building permit. Each altered element or space is required to comply with the provisions of Division 2 of CBC Chapter 11B. In addition to this, when alterations or additions are made to existing buildings or facilities, an accessible path of travel to the specific area of alteration or addition is required to comply with CBC 11B-202.4.
Automatic and power-assisted doors and gates are not required by either Chapter 11A or 11B. They are permitted to be installed in both residential and commercial properties where minimum code provisions are met. They are typically used when the required maneuvering clearances at doors because of site constraints, or door-opening force maximums, cannot be met.
DISCUSSION
Based on the current Federal and State laws that govern accessibility, privately-funded projects can be divided into four categories:
Commercial Projects constructed prior to July 26, 1990 (ADA) Commercial Projects constructed post July 26, 1990 (ADA) Residential Projects constructed prior to March 13, 1991 (FEHA) Residential Projects constructed post March 13, 1991 (FEHA).
For all commercial buildings (whether constructed prior to or after enactment of the ADA), Federal and State provisions cover accessibility upgrades and maintenance of accessible features. Regardless of construction date, State codes require that altered elements or spaces in existing buildings comply with the requirements of the current CBC and an accessible path of travel to the specific area of alteration be provided with accessible upgrades. Construction costs may limit accessible upgrades, but compliance with current code provisions to the greatest extent possible must be provided. As improvements on commercial buildings are permitted over time (e.g. with tenant improvements), barriers will be removed and these buildings will become more accessible.
To remediate barrier issues for commercial buildings, individuals may file a complaint to the California State Department of Justice to review the building for compliance with the ADA, or a complaint can be made to the City’s Building Division, which will investigate to see if maintenance of accessible features are in working condition and usable by persons with disabilities. In the case of City enforcement, a code enforcement case would be opened in response to a complaint and the situation investigated by Building Division staff to determine if a notice of violation is warranted.
Residential multifamily buildings constructed after March 13, 1991, are required to be maintained in compliance with the accessibility standards in effect at the time of construction. To remediate barrier issues in these buildings, individuals may file a complaint to the Office of Fair Housing and Equal Opportunity to review the building for compliance with Federal or State laws.
Residential multifamily dwelling buildings constructed prior to March 13, 1991, had no accessibility standards in effect at the time of construction, and the State codes do not have requirements for accessible upgrades to existing residential facilities. As a consequence, the venues for remediation of barrier issues in these buildings is limited.
Should council wish to add accessibility requirements to buildings in Emeryville, options for consideration of this additional regulation include:
Option 1:
The International Property Maintenance Code (IPMC) regulates existing residential and nonresidential structures. The purpose of this code is to establish minimum requirements to provide a reasonable level of health, safety, and general welfare insofar as they are affected by the continued occupancy and maintenance of structures and premises. Existing structures and premises that do not comply with these provisions are required to be altered or repaired to provide a reasonable minimum level of health, safety and general welfare. The IPMC is codified under Title 8 Chapter 9 of the Emeryville Municipal Code. The City could adopt a local amendment of the current IPMC scoping provisions to include barrier removal and accessible upgrades to existing building entrances. Local amendments must be more restrictive than the existing code and the City must make findings that modifications to the code are reasonably necessary due to climatic, geological, or topographic conditions. Local amendments are also required to be submitted to and accepted by the California Building Standards Commission (BSC). Once accepted, the new provisions become effective as the current building codes. The time required to receive BSC acceptance extends the process as compared to Option 2, below, and there is a risk that the BSC will not accept the local amendments. However, if they are accepted by the BSC, there is less risk of a successful legal challenge as compared to Option 2.
Option 2
Create a policy which utilizes the Chief Building/Fire Code Official’s authority to interpret the IPMC scoping provisions to include accessibility upgrades as part of the general welfare for continued occupancy of structures. Under this option, the Chief Building/Fire Code Official would create a written policy for rendering IPMC code interpretation to address removal of physical barriers to entrances of buildings. While this option does not require acceptance of the BSC and becomes effective immediately, the result may not be as legally defensible as Option 1.
If the City Council decides local accessibility requirements above and beyond the existing State and Federal accessibility requirements outlined above are necessary, staff recommend Option 1 as this method is more legally defensible.
Under either option, in order to develop the requirements to provide additional access to existing buildings, the City Council’s input on the scope of applicability, potential exceptions to requirements, and enforcement mechanisms is requested. The following contextual information is provided to assist the City Council in providing the requested direction.
Scope of Applicability
In general, the number of buildings covered by an ordinance would directly correlate with the costs of administration and risk of legal challenge. The table below is derived from a 2011 database of Alameda County Assessor’s data (the most recent readily available to staff), and figures are approximate. The table indicates that of the 5,100 parcels in Emeryville, inclusive of individual condominiums, 3,095 have improvements predating 1990.
It is important to note the limitations of this data. First, since it is from 2011, any redevelopment of older buildings post 2011 is not included. Additionally, this data does not necessarily indicate that pre-1990 buildings have not been substantially improved since originally constructed, and older buildings may have received accessibility improvements as part of tenant improvements, additions or alterations.
Use Code
Parcels with Post-1990 Improvements
Parcels with Pre-1990 Improvements
No improvement data
Total Parcels
Nonresidential
60 200
340
600
Residential
965
2,895
640
4,500
Total
1,025
3,095
980
5,100
The following tables are derived from the 2021 American Community Survey conducted by the United States Census Bureau. In contrast to the table above, which focuses on parcels, this data focus on housing units. Similar to the above table, the data does not necessarily indicate that older buildings have not been improved since originally constructed.
Occupied Housing
Structure Type by Tenure
Total Occupied Housing Units
% of Total
Owner Occupied
% of Total
Renter Occupied
% of Total
Single-family, attached or detached
979
13%
510
52%
469
48%
Multifamily, 2-4 units
524
7%
169
32%
355
68%
Multifamily, 5-9
392
5%
8 2%
384
98%
Multifamily, 10 +
5350
74%
1343
25%
4007
75%
Mobile home
11 0%
11 100%
0 0%
Total Occupied Housing Units
7256
100%
2,041
28%
5215
72%*
*Percentages do not sum to 72 due to rounding
Housing Stock by Year Built
Total Housing Units
% of Total
2020 or Later
64 1%
2000-2019
2582
33%
1980-1999
2487
31%
1960-1979
1637
21%
1959 or Earlier
1176
15%
Total Housing Units
7946
100%*
*Percentages do not sum to 100 due to rounding
Exceptions to Requirements
The costs required for accessibility upgrades vary widely depending on site- and building-specific characteristics including physical and structural constraints. The following table includes a range of estimates for typical path-of-travel accessibility upgrades and has been developed by West Coast Code Consultants based on several data sources.
Item
Estimated Cost Range (in dollars)
Minor concrete curb ramp and sidewalk
7,500-15,000
Removal and replacement of sidewalk
150-250 per linear foot
Repave parking space
1,800-4,000
Restripe parking and signage
600-900
Install ramp
5,000-15,000
Install handrails at ramps
50 per linear foot
Reconstruct floor at door landing
1,300-10,000
Widen door
2,000-5,000
Add automatic door opener
5,000-10,000
Install platform lift
5,000-15,000
An ordinance could include exceptions to the requirements based on a maximum cost of required upgrades, which could be scaled to the size of the building (e.g. number of units) or through a hardship exemption process where the building owner provides information demonstrating infeasibility (either logistically, financially, or both) to be evaluated by staff.
Enforcement
In general, the wider the universe of eligible complainants, the higher the administrative burden on the City. The following is an example of a timeline for complaints, to provide an overview of the City’s typical enforcement process:
o A complaint is submitted to the City’s Building Division. o Within 30 days, the Building Division determines the validity of the complaint o If the complaint is determined to be invalid, the Building Division informs the complainant in writing within 15 business days of the determination. o If the complaint is determined to be valid, the property owner is notified in writing. o The City determines a timeline which is reasonable for the owner to perform and remediate the violation. o The City reinspects the property at the determined time. o If the violation continues to exist, the City may issue an additional notice of violation or administrative citation (as applicable). o Correspondence, reinspection, follow-up to abate violation o Appeals, findings, and determinations which all mirror current code enforcement process.
An ordinance could establish eligible complainants as tenants of the applicable building, any occupant of the building, or any member of the public. An ordinance could also establish a minimum number of complaints for a building that must be received before the complaint is investigated.
DISCUSSION QUESTIONS
Does the City Council prefer:
Option 1 (IPMC amendment with BSC acceptance)
Option 2 (Building Official code interpretation)
No local regulation
What types of buildings would the additional regulation apply to? Use (commercial and/or residential)
Age of building
Size (number of units)
What, if any, exceptions might apply?
Who can file a complaint:
Tenants, building users, or any member of the public?
Should there be a minimum number of complaints received on a building to initiate an investigation?
FISCAL IMPACT
While this study session has no direct fiscal impact on the City, any proposed ordinance that exceeds the existing requirements of the CBC will require additional staff resources of the Building Division for implementation. An estimate of the costs of implementation depend on the scope of applicability of the ordinance, the requirements imposed, the timeline for compliance, and the enforcement mechanism.
STAFF COMMUNICIATION WITH PUBLIC
None.
CONFLICT OF INTEREST
Not applicable.
Conclusion
Staff requests the City Council discuss and provide direction related to a potential ordinance requiring additional accessibility requirements for commercial and multifamily buildings.
PREPARED BY: Victor R. Gonzales, Chief Building/Fire Official REVIEWED BY: Chadrick Smalley, Community Development Director Approved and Forwarded to the
City Council of the City of Emeryville:
Paul Buddenhagen, City Manager
Accessibility Study Session
City Council Meeting | December 19, 2023
City of Emeryville
CALIFORNIA
MEMORANDUM