In its statement of interest filed Tuesday in Access Living of Metropolitan Chicago's suit, the DOJ argued that Chicago's housing program counts as a "'program or activity'" that's covered by the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
"Under Section 504 and Title II, a program or activity is anything the public entity does, covers all the normal functions of a government entity, and includes those activities that are carried out through contractual, licensing or other arrangements," the DOJ alleged. "Chicago has committed to providing the benefit of affordable rental housing to its residents as expressed through its municipal code, website and contracts with private developers."
The DOJ also claimed that the city has the responsibility to "ensure that the private developers with whom it contracts provide affordable housing that is accessible to individuals with disabilities."
In May 2018, Access Living of Metropolitan Chicago sued Chicago over the accessibility of the developments of its affordable rental housing program. The city pushed for summary judgment in October, arguing that it only provided "gap funding" for the developments and that the developers were responsible for the construction and operation of the properties.
The DOJ rejected the city's argument that it doesn't have an affordable rental housing program and that Section 504 and the ADA's Title II don't cover developments that don't receive federal funding.
"Section 504 and Title II cover all programs and activities of a public entity, and do not distinguish between a program provided directly by the public entity and a program provided through a contractual or other arrangement," the DOJ argued. "The regulations make clear that when a city's program is carried out through 'contractual, licensing or other arrangements,' the city maintains its Section 504 and Title II obligations."
According to the DOJ, Chicago also receives an average of $100 million in annual federal funding for housing, and the city's contracts with affordable housing developers require the developers to obey local, state and federal laws covering accessibility requirements for housing. Under those contracts, the city is also allowed to enforce federal accessibility requirements through litigation, the DOJ alleged.
According to the DOJ, Chicago is also required to make sure the federal funds received for affordable housing developments are used in ways that comply with federal law governing accessibility and U.S. Department of Housing and Urban Development funding regulations.
"Chicago makes several unavailing arguments that it lacks operational control and thus liability because: it is merely a funding entity; it does not operate the housing units; and it merely issues building permits," the DOJ claimed. "But the facts and cases relied on by Chicago fail to support its claims."
The DOJ alleged that Chicago relied on four cases: Bacon v. City of Richmond, Virginia, McDaniel v. Board of Education of City of Chicago, Swan v. Board of Education of City of Chicago, and Wright v. Bd. of Comm'rs of the Capital Area Transit Sys. However, according to the DOJ, these four cases "address situations involving two separate public entities where only the public entity with the legal authority to carry out the program at issue was found liable under Section 504 or Title II."
Here, Chicago is the public entity with authority to provide affordable rental housing to its residents," the DOJ argued.
On Thursday, Michael Allen, counsel for Access Living of Metropolitan Chicago, told Law360 on Thursday that it is "grateful" for the DOJ's statement of interest countering the city's argument claiming that it can't be held liable for the alleged inaccessibility of the developments of its affordable housing program.
"Fully supporting Access Living's claims under the ADA and the Rehabilitation Act, the statement makes clear that 'Chicago has the authority, obligation and ability to ensure that the private developers with whom it contracts provide affordable housing that is accessible to individuals with disabilities,'" Allen said. "We expect Chicago's summary judgment motion to be denied. Perhaps then, the city will respond to the settlement framework Access Living first proposed in 2018."
Counsel for Chicago and the DOJ didn't respond to requests for comment.
Access Living of Metropolitan Chicago is represented by Emily E.E. Curran, Jennifer I. Klar, Kali J. Schellenberg, Lila R. Miller, Michael Allen and Valerie D. Comenencia Ortiz of Rehnan Colfax PLLC and Kenneth M. Walden of Access Living.
Chicago is represented by Monica H. Khetarpal and Jason A. Selvey of Jackson Lewis PC, Christie Starzec of City of Chicago Department of Law, and John C. Hansberry and Matthew S. Payne of Fox Rothschild LLP.
The DOJ is represented by Patrick W. Johnson of the U.S. Attorney's Office for the Northern District of Illinois.
The case is Access Living of Metropolitan Chicago v. City of Chicago, case number 1:18-cv-03399, in the U.S. District for the Northern District of Illinois.
--Editing by John C. Davenport.
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