A federal judge has rejected Chicago’s efforts to end a lawsuit from disability access advocates who claim the city isn’t adequately ensuring access at properties subsidized through a municipal affordable housing program.
Access Living of Metropolitan Chicago sued the city in 2018 under Title II of the Americans with Disabilities Act and the Rehabilitation and Fair Housing acts, saying an affordable housing program that dates to 1988 — and which takes in roughly $100 million in annual U.S. Department of Housing and Urban Development disbursals — effectively discriminates against people with disabilities.
U.S. District Judge Edmond Chang denied the city’s motion for summary judgment in which the city argued its efforts don’t qualify as programs or activities under those laws, therefore exempting it from liability if any of the buildings don’t meet certain guidelines.
U.S. District Judge Edmond Chang
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According to Chang, Chicago “has supported the construction and rehabilitation of over 500 residential developments, creating more than 50,000 affordable housing units” since 1988, using federal money and “other financing sources to provide grants and loans to private developers and nonprofit organizations for building, rehabilitating and preserving the available rental housing in the city. In exchange for funding, the developers agree to provide some apartments at below market rate to tenants who meet certain income requirements.”
Access Living alleged a failure to make sure these developments meet federal accessibility guidelines constitutes discrimination. While the city maintained the involvement of government money or tax credits doesn’t inherently impose statutory liability, Access Living argued for a broad understanding of the legal definition of “service, program or activity.”
Chang said U.S. Seventh Circuit Court of Appeals precedent established governments can’t avoid legal obligations through third-party contracting and that “governing regulations contemplate that liability may attach to some relationships between public and private actors.” But the issue is not absolute.
“This is not to say that any time a municipality provides some funding to private entities the government then becomes liable for any of the project’s failures or legal violations,” Chang wrote. “But here, the record evidence creates a genuine issue of fact on whether the city’s funding and oversight role render it liable under the ADA and Section 504.”
Although the developers retain property management responsibilities, Chang wrote, it is significant that developers can only access funding through the city by signing contracts requiring compliance with federal law, including clauses directly referencing the clauses informing Access Living’s lawsuit. That opens the city to liability not just for projects that get federal funding but any city money at all, since “the program in its entirety must comply with the federal accessibility laws,” should a jury agree the “affordable housing scheme is a qualifying ‘program’ or ‘activity’ of the city.”
Chang further said a reasonable jury could agree with Access Living’s allegations under the Fair Housing Act, which hinge on the city’s role as “a central participant in the design and construction process, especially through the permit-review process.” He noted HFA laws are directed not at actors but outcomes, making it reasonable to hold the city liable for its role if discrimination is found to exist.
The city also argued it should be exempt from liability for developments outside the legal window for litigation, but Chang said “a reasonable jury can find that the statute of limitations did not expire because the city has engaged in a pattern of discrimination in its affordable housing scheme, so much so that there is a continuing violation of the federal accessibility laws.”
Chang also affirmed Access Living’s right to bring a lawsuit under the federal laws. The city said Access Living improperly sued by seeking to enforce regulations instead of pursuing statutory remedies, but Chang said that position relies on a misreading of the complaint and noted Access Living only cited “the regulations to provide the context and the definitions needed to apply the statutory provisions.”
In addition to establishing what a jury would have to consider, Chang ordered the parties to engage in settlement negotiations and said he would set a trial schedule should that process falter or stall.
Neither Access Living nor the Chicago Department of Law responded to a request for comment.