United States District Court, D. Montana, Missoula Division
DONALD W. MOLLOY, District Judge.
On January 11, 2013, the United States Department of Housing and Urban Development ("HUD") filed a complaint alleging that Defendants Anthony Boote ("Boote"), Red Dog Construction, LLC ("Red Dog"), and Charles J. Chandler ("Chandler") violated the Federal Fair Housing Act Amendments ("Fair Housing Act"), 42 U.S.C. § 3601 et seq. (Doc. 1.) HUD did not make any claims against the City of Missoula ("Missoula"). On January 23, 2013, Intervening Plaintiff Montana Fair Housing, Inc. ("Fair Housing") filed its Complaint in Intervention against Boote, Red Dog, Chandler, and Missoula. (Doc. 7.) It alleged two counts against Boote, Red Dog, and Chandler (Counts I and II), which were resolved by entry of a Consent Order, (Docs. 3 and 3-1), and dismissed, (Doc. 8). The Complaint in Intervention alleges two counts against Missoula: Count III: violation of the Fair Housing Act and Count IV: violation of the Montana Human Rights Act ("Human Rights Act"), Mont. Code Ann. § 49-2-101, et seq., and the Montana Governmental Code of Fair Practices ("Code of Fair Practices"), Mont. Code Ann. § 49-3-101, et seq.
Missoula is entitled to summary judgment as to part of Count III and part of Count IV. Summary disposition in favor of Missoula is appropriate as to Fair Housing's claims under 42 U.S.C. § 3604(f)(1) and (2), Montana Code Annotated § 49-2-305(1)(d) and (4)(c), and § 49-3-204. Genuine issues of material fact prevent summary disposition of Fair Housing's remaining claims. Missoula's motion to strike is denied. Fair Housing's motion to dismiss a count of the Complaint in Intervention is denied as moot. Finally, Fair Housing's request for judicial notice is denied and its motion to strike is granted.
I. The Inez Property
On June 7, 2011, Boote and Chandler submitted a Commercial Building Permit Application to Missoula to build a four-plex residential building at 215 Inez Street in Missoula, Montana ("the Inez Property"). (Missoula's SUF, Doc. 26 at ¶ 2.) The building consisted of four dwelling units. Steve Meismer ("Meismer"), Senior Construction Plans Examiner for the Building Inspection Division of the Missoula Public Works Department, reviewed and approved the Inez Property plans. Meismer then stamped the plans with the following:
... Compliance with the requirements of the State Building Code for physical accessibility to persons with disabilities does not necessarily guarantee compliance with the Americans With Disabilities Act of 1990, the Rehabilitation Act of 1973, the Fair Housing Amendments Act of 1988, Title 49, Chapter 2, commonly known as the Montana Human Rights Act or similar federal, state, or local laws that mandate accessibility to commercial construction of multifamily housing.
(Id. at ¶ 9.) Meismer reviewed the plans to determine if they complied with the city building code, i.e., the International Building Code (the "Building Code"). Meismer does not review designs for compliance with the Fair Housing Act or the Human Rights Act and does not consider those laws in reviewing building designs. (Id. at ¶¶ 4-5; Fair Housing's Br. in Opp., Doc. 41 at 2-3.)
Chandler commenced construction. (Missoula's SUF, Doc. 26 at ¶ 10.) Shortly thereafter, Chandler received a letter dated September 6, 2011 from Fair Housing, advising him that it was aware he was constructing a four-plex and of the need for construction to comply with the Fair Housing Act. Missoula inspected the construction as it progressed. (Id.) Once construction was completed, Missoula issued a Certificate of Occupancy for the Inez Property as a four-plex on February 8, 2012. (Id. at ¶ 11.) The Certificate of Occupancy included the following language:
Compliance with the requirements of the State Building Code for physical accessibility to persons with disabilities does not necessarily guarantee compliance with the Americans With Disabilities Act of 1990, the Rehabilitation Act of 1973, the Fair Housing Amendments Act of 1988, Title 49, Chapter 2, commonly known as the Montana Human Rights Act or similar federal, state, or local laws that mandate accessibility to commercial construction of multifamily housing.
II. The Building Code
Sections 1101-1107 of the Building Code set out accessibility requirements for a building with four or more dwellings. Pursuant to the Building Code,
[w]here there are four or more dwelling units or sleeping units intended to be occupied as a residence in a single structure, every dwelling unit and sleeping unit intended to be occupied as a residence shall be a Type B unit. Exception: The number of Type B units is permitted to be reduced in accordance with section 1107.7.
Section 1107.7.1 states: "Structures without elevator service. Where no elevator service is provided in a structure, only the dwelling and sleeping units that are located on stories indicated in Sections 1188.8.131.52 and 1184.108.40.206 are required to be Type A and Type B units." The referenced sections read as follows:
1220.127.116.11 One story with Type B units required. At least one story containing dwelling units or sleeping units intended to be occupied as a residence shall be provided with an accessible entrance from the exterior of the structure and all units intended to be occupied as a residence on that story shall be Type B units.
118.104.22.168 Additional stories with Type B units. On all other stories that have a building entrance in proximity to arrival points intended to serve units on that story, as indicated in Items 1 and 2, all dwelling units and sleeping units intended to be occupied as a residence served by that entrance on that story shall be Type B units.
1. Where the slopes of the undisturbed site measured between the planned entrance and all vehicular or pedestrian arrival points with 50 feet (15 240 mm) of the planned entrance are 10 percent or less, and
2. Where the slopes of the planned finished grade measured between the entrance and all vehicular or pedestrian arrival points within 50 feet (15 240 mm) of the planned entrance are 10 percent or less.
Where no such arrival points are within 50 feet (15 240 mm) of the entrance, the closest arrival point shall be used unless that arrival point serves the story required by Section 122.214.171.124.
(Doc. 32-18 at 2.) Section 1107.7.2 then states
Multistory units. A multistory dwelling or sleeping unit which is not provided with elevator service is not required to be a Type B unit. Where a multistory unit is provided with external elevator service to only one floor, the floor provided with elevator service shall be the primary entry to the unit, shall comply with the ...