The ADA did not go into effect until after construction was completed at Fillmore Center. It therefore does not apply to the Agency's activities prior to completion of construction. However, the Agency issued additional bonds for Fillmore Center since the effective date of the Act. The bonds were issued to implement a Reorganization Plan that had been confirmed by the Bankruptcy Court. FCA's creditors would have foreclosed on Fillmore Center, resulting in the elimination of the requirement that it provide affordable housing, had the bonds not been issued.
The residential portions of Fillmore Center (the only portions at issue in this suit) do not themselves fall within the bounds of the ADA, since apartments and condominiums do not constitute public accommodations within the meaning of the Act.
Fillmore Center, however, is part of a program or activity of the Agency -- the program or activity of urban renewal.
Since public entities may not discriminate in their programs and activities and Fillmore Center is part of a program or activity of the Agency, the ADA applies to the Agency's involvement with Fillmore Center.
Plaintiffs argue that the provision of disability-neutral assistance (such as bond financing) violates the ADA if the assistance is provided to an organization that discriminates against disabled beneficiaries of the public agency's program. The court agrees. The provision of bonds is a "service" within the meaning of section 12132, and a disabled person is denied the benefit of that service (the funding and provision of low income housing) if she or he is prevented from living in the low income housing because of his or her disability.
The Agency argues that the issuance of the bonds does not constitute a violation of the ADA because it was necessary to preserve the affordable housing at Fillmore Center. It argues that "the Agency no more violated the ADA by issuing the bonds . . . to save those affordable units than the Fire Department would be liable under the ADA by responding to a fire at the Project that otherwise would destroy them." The Agency is incorrect. The crucial distinction is that the fire department has not contracted with FCA/FCPC for FCA/FCPC to provide any aid, benefit, or service to beneficiaries of the fire department's program. The Agency has contracted with FCA/FCPC for FCA/FCPC to provide aid, benefits, or services to beneficiaries of the Agency's redevelopment program. 28 C.F.R. 35.130(b)(1)(v) is therefore applicable to the Agency and its bond financing. The Agency's request for summary judgment on the Americans with Disabilities Act claim is denied.
F. Section 1983
Both the Agency and DMJM move for summary judgment on plaintiffs' section 1983 claim. The court grants DMJM's motion for summary judgment on the section 1983 claim in light of the holding that the Rehabilitation Act and the Architectural Barriers Act do not apply to Fillmore Center.
The court also grants the Agency's motion for summary judgment on the section 1983 claim to the extent that it is predicated on alleged violations of the Rehabilitation Act and the Architectural Barriers Act.
The Americans with Disabilities Act did not go into effect until after DMJM was finished with its work, so DMJM cannot have conspired to violate the ADA. Since there are no other valid federal claims involved, DMJM could not have conspired to violate a federal right in violation of section 1983.
The next question is whether a section 1983 claim may be predicated on a violation of the ADA. The parties have briefed the question of whether a section 1983 claim may be based on a violation of section 504 of the Rehabilitation Act. Since the ADA incorporates the remedies, procedures, and rights set forth in the Rehabilitation Act, see 42 U.S.C. § 12133, for violations under section 202 of the Act (42 U.S.C. § 12132), the briefing is applicable to the ADA claim. There is a split of authority regarding whether a section 1983 claim can be based on section 504.
In Tyus v. Ohio Dept. of Youth Services, 606 F. Supp. 239 (S.D. Ohio 1985), for instance, the court ruled that a section 1983 claim could not be based on section 504 of the Rehabilitation Act because the latter's
remedial devices that are sufficiently comprehensive to demonstrate a congressional intent to preclude suits under 42 U.S.C. § 1983, on either statutory or constitutional grounds, that could be brought under the provisions of the Rehabilitation Act.
There has been no holding on the question in the Ninth Circuit, but it was addressed by Judge Norris in dissent in Madsen v. Boise State University, 976 F.2d 1219, 1225-26 (9th Cir. 1992). Judge Norris concluded that section 504 does not preclude a section 1983 action. He noted that a court is "not lightly to conclude the Congress intended to' preclude reliance on section 1983 as a remedy for the deprivation of a federally secured right," Madsen, 976 F.2d at 1225 (Norris, J. Dissenting) (quoting Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 520-21, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990)), that nothing in the statutory language of section 504 suggests that Congress intended to preclude a section 1983 action, and that section 504's administrative scheme is not as comprehensive as the administrative schemes of statutes that have been held to preclude section 1983 actions. The court adopts Judge Norris's reasoning and holds that the ADA does not preclude an action under section 1983. The Agency's motion for summary judgment on the section 1983 claim is therefore DENIED to the extent that the section 1983 claim is predicated on a violation of the ADA.
G. The Statute of Limitations and the Federal Claims
The Agency, joined by FCA and FCPC, argues that the federal claims are barred by the statute of limitations.
The Agency erroneously argues that California's three-year statute of limitations governs claims brought under Section 504 of the Rehabilitation Act and under section 1983. It is well established that section 1983 claims are governed by California's one-year personal injury statute of limitations (Code of Civil Procedure § 340(3)). Alexopulos v. San Francisco Unified Sch. Dist., 817 F.2d 551, 554 (9th Cir. 1987).
Additionally, the weight of authority (most of which did not exist prior to the briefing in this case) supports a similar conclusion with regard to section 504. In Alexopulos, the Ninth Circuit expressly left open the question of whether claims under section 504 are governed by Code of Civil Procedure § 340(3) or § 338(1) (now § 338(a)), which provides a three-year period for a liability created by statute. Id. The court, however, intimated that the personal injury statute should apply. Id. ("Section 504 is a civil rights statute, closely analogous to section 1983." (Citation omitted)). The Ninth Circuit has not addressed the question since Alexopulos.
Most appellate courts that have considered the question since Alexopulos have adopted the forum state's personal injury statute of limitations. See, e.g., Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir. 1992); Bush v. Commonwealth Edison Co., 990 F.2d 928, 933 (7th Cir. 1993); Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 982-83 (5th Cir. 1992). This court follows their reasoning and holds that the section 504 claim is governed by California's one-year personal injury statute of limitations.
For the federal claims, "a cause of action accrues, and the statute of limitations begins to run, when a plaintiff knows or has reason to know of the injury that is the basis of the action." Alexopulos, 817 F.2d at 555. All events which plaintiffs argue support their section 1983 conspiracy claim occurred before and during 1989, culminating in the hearings before the Handicapped Access Appeals Board ("HAAB") and the Board of Examiners. Those events occurred more than one year before the complaint was filed in this case (March 25, 1991). Even employing a continuing violation theory, therefore, the section 1983 conspiracy claim against all defendants is barred by the one-year statute of limitations.
The Agency argues that any cause of action against it under section 504 accrued when it approved FCA's plans and conveyed the site to FCA. While plaintiffs may have had a cause of action then, however, the Agency has had continuing involvement with Fillmore Center, including recently arranging a large bond issuance. While the original acts may be beyond the statutory period, the bond financing is within the statutory period. Were the Rehabilitation Act otherwise to apply, its application to at least some acts of the Agency would not be barred by the statute of limitations.
Moreover, if section 504 applied to Fillmore Center, FCA/FCPC's violation would constitute a continuing violation, for which the statute of limitations does not run. See Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472, 1480-81 (9th Cir. 1989) (the maintenance of a discriminatory system both before and during the limitations period is a continuing violation); City of Fontana v. Atkinson, 212 Cal. App. 2d 499, 28 Cal. Rptr. 25, 32 (4th Dist. 1963) (statute did not run for zoning violation). The Rehabilitation Act claim is not time-barred with regard to the Agency or FCA/FCPC.
The Agency is correct that the Architectural Barriers Act claim against it is barred by the statute of limitations. Any liability under that statute for the Agency would be as a result of approving plans that do not comply with access requirements and that occurred more than three years prior to the institution of this suit.
Again, however, the Architectural Barriers Act claim against FCA/FCPC is not time-barred, because, were the Act applicable to Fillmore Center, the violation of the Act by FCA/FCPC would constitute a continuing violation.
Finally, the newly added ADA claim against the Agency is not barred by the statute of limitations. It is based on actions subsequent to the filing of the complaint.
In summary, the section 1983 claim predicated upon an alleged conspiracy to violate the Rehabilitation Act and the Architectural Barriers Act is barred by the one-year statute of limitations as to all defendants. The Architectural Barriers Act claim against the Agency is barred by the statute of limitations but the Rehabilitation Act claim is not. Neither the Architectural Barriers Act claim nor the Rehabilitation Act claim is barred against FCA/FCPC. Neither the ADA claim against the Agency nor the section 1983 claim against the Agency predicated on a violation of the ADA is barred by the statute of limitations.
H. Application of Title 24
Plaintiffs move for summary adjudication on the question of whether Fillmore Center is subject to the provisions of Title 24 which imposes construction requirements on certain types of buildings to provide access and adaptability for the handicapped.
Plaintiffs have offered three grounds to support a finding that Title 24 applies to Fillmore Center. First, they contend that Fillmore Center is an apartment complex, not a condominium development, in which case Title 24 would apply. Second, they contend that Fillmore Center is subject to the requirements of Title 24 because it is a publicly funded living accommodation. Finally, plaintiffs contend that Fillmore Center is subject to the provisions of Title 24 by San Francisco Building Code Sections 4901-02.
1. Is Fillmore Center an Apartment Complex?
Plaintiff argues that Fillmore center is an apartment complex with five or more units, as opposed to a condominium development, and therefore it must comply with the requirements of Title 24.
The court agrees.
Title 24 provides:
Access and adaptability requirements for the physically handicapped shall apply to all privately funded apartment houses of five or more dwelling units constructed or approved for construction after the effective date of these requirements, excluding from these regulations condominiums, co-ops, and town houses.
24 Cal. Admin. Code 2-110(b)(9). Fillmore Center consists of more than five units.
In support of their argument that Fillmore Center is an apartment complex rather than a condominium development, plaintiffs point out that no unit has ever been offered for sale and none could be bought as of this time. The owners have not yet petitioned the state for permission to sell condominium units. Plaintiffs also note that the Land Disposition Agreement ("LDA") between the Agency and FCA requires that the residential units be for "rental occupancy," and that tax exempt bonds were issued to finance the project on condition that the units be "rental." However, condominiums can be rented out, thus satisfying the rental requirement, so there is no inherent contradiction between being for rent and being a condominium.
point to the LDA to show that the project is a condominium development, but the LDA actually only contemplates that Fillmore Center's units could become condominiums, from which one can infer that the project was intended, at least in the short term, to be an apartment complex:
The Developer intends to design and construct the residential units for possible sale as condominium units upon the expiration of the qualified project, which shall be prescribed by the provisions of the Agency's bond financing. The Agency agrees to process and file, when requested by the Developer, condominium subdivision maps, both tentative and final. . . .
LDA § 9.09(f) (emphasis added).
Plaintiffs also cite official documents that describe the project as "apartments," such as FCA's bankruptcy filing and Bureau of Building Inspection Reports. On the other hand, Fillmore Center has filed subdivision maps which refer to the project as a condominium.
Defendants argue that officials charged with enforcement of Title 24 decided that the project is a condominium development and therefore not subject to the requirements of Title 24, except as applied through a local ordinance (discussed below). Defendants claim that deference is due to the officials' decision. Pursuant to Government Code § 4453 and San Francisco Building Code § 201, the Bureau of Building Inspection of the City and County of San Francisco ("BBI") is charged with enforcement of Title 24. BBI's Superintendent of Building Inspection, Larry Litchfield, stated to the HAAB that Fillmore Center is a condominium development and therefore exempt from Title 24. Davis Decl., Exh. A. BBI, however, did not make an independent determination that Fillmore Center is a condominium development. Rather, BBI officials (including Mr. Litchfield) decided that Fillmore Center is a condominium development only because the developers of Fillmore Center stated in their building permit applications that it was a condominium development. Litchfield Depo. at 17-18, Skaff Depo. at 22. Thus, statements of BBI officials on this issue have no significance.
The City Attorney's office also wrote an opinion letter on a separate issue that took as its starting point that Fillmore Center is a condominium development. Decl. of Lori Lee, Exh. CY000007. The letter, however, does not discuss why Fillmore Center is a condominium development. No deference is due to the City Attorney's statement since the evidence before the court on how city officials determined that the project is a condominium development demonstrates that the officials did not make an independent determination.
Defendants infer from a city ordinance that Fillmore Center is a condominium development and therefore exempt from Title 24 (which is promulgated pursuant to state law). San Francisco Building Code sections 4901 and 4902 were adopted to extend Title 24's handicap access requirements to condominiums.
Defendants argue that the local ordinance would be unnecessary if developments such as Fillmore Center were already covered by Title 24. The Board of Supervisors found that:
Many new multiple-unit housing facilities constructed as condominiums are operated as apartments. For example, condominium developers who finance projects through residential Mortgage Revenue Bonds rent the units for at least 15 years to comply with federal tax laws.
San Francisco Building Code § 4901(a)(3). Such developers were avoiding the requirements of Title 24 by creating condominiums that functioned as rental units. The ordinance was passed to prevent that. The ordinance and the Board of Supervisors' finding, however, do not answer the question of whether Fillmore Center is a condominium development. They stand only for the proposition that it was possible to take advantage of subsidies for rental units and yet avoid handicap access requirements by making the rental units condominiums rather than apartments.
Defendants also note that the California Department of Housing and Community Development issued an administrative interpretation of Title 24 which states that Title 24 does not cover condominiums, even if they are rented out by the owner. As with the reason for enactment of §§ 4901-02, however, this interpretation does not help to determine when a building is an apartment and when it is a condominium; it too only confirms that a condominium can be non-owner occupied and yet remain a condominium rather than become an apartment.
Defendants cite a recent California Supreme Court case for the proposition that, in DMJM's words, "once a final map had been filed and recorded, the condominium came into existence, since the city could not now impose additional conditions on the condominium conversion." Defendants misstate the holding of the case in a critical manner. The case actually demonstrates that Fillmore Center is an apartment complex and not a condominium development. The case, City of West Hollywood v. Beverly Towers, Inc., 52 Cal. 3d 1184, 278 Cal. Rptr. 375, 805 P.2d 329 (1991), held that once a developer "secures all state approvals to convert [to a condominium] and the only remaining act required to complete the conversion is to convey title to a single unit," id. at 1191, "local agencies cannot enforce condominium conversion regulations enacted" thereafter. Id. The case does not hold that a condominium comes into existence with the recording of the condominium map. To the contrary, the Court noted that a condominium does not come into existence until one unit is conveyed:
Civil Code section 1352 defines a condominium as the conveyance of a separate interest coupled with an interest in the common area or membership in the association created to manage the development, and the recording of (a) a declaration (id., § 1353), (b) a condominium plan (id., § 1351, subd. (e)) if any exists, and (c) a final map or parcel map if required by the Map Act. Under the statutory definition of a condominium, therefore, an apartment building is not converted into a condominium project until at least one unit has been conveyed, even if the owner has obtained all the governmental approvals and recorded all the documents necessary to subdivide and sell individual apartments as condominiums. . . . Defendants contend the requirement of the sale of a unit is purely technical. They reason that because they have all the elements necessary to the creation of a common interest development, the City cannot impose on them additional conditions. We agree with this contention. It is irrelevant whether defendants sold a unit before [the local ordinance] was enacted because they had already obtained all the necessary approval to do so. Common ownership, which is achieved by sale of an individual unit, is only a definitional element of a condominium. It is not an element that must be satisfied before an owner's right to sell is immune from conditions imposed by a city on the exercise of that right.