FHA Safe Harbor Codes and Understanding the Local Code Overlay

Is there any reason we should be back-referencing the 2009 version of ANSI when local code requires that we follow the newer 2017 version? It's a question that comes up quite often from architects and developers. And while it may seem counterintuitive to apply accessibility codes that were published over a decade ago, and in most cases a lot older than that. There’s actually a legal reason for using these older codes, and that’s compliance with the FHA (Fair Housing Act).
The FHA requires all 'covered multifamily dwellings' designed and constructed for first occupancy after March 13, 1991, to be readily accessible and usable by people with disabilities.

In elevator-served buildings, covered multifamily dwellings are all dwelling units in buildings with four or more dwelling units. In non-elevator-served buildings, covered multifamily dwellings are only the ground-floor dwelling units in buildings with four or more dwelling units.

It's important to remember that the FHA applies to all “covered multifamily dwellings” regardless of the project's funding source, even if your project is 100% privately funded, the FHA will still apply if you meet the requirements above.

In order to achieve FHA design and construction compliance on your residential project, the scoping and technical requirements of a HUD (Housing and Urban Development) approved “safe harbor” code are required. Safe harbors are specific codes that were reviewed and approved by HUD that meet the requirements and intent of the Fair Housing Act, the regulations, and the Guidelines. The complete list of FHA safe harbor codes can be found here, with the most recent codes to be approved being ANSI A117.1-2009 and the 2009, 2012, 2015 & 2018 versions of the IBC.

A lot of jurisdictions are using the most recent releases of the ICC codes, such as ANSI 2017, along with the 2021 or 2024 version of the IBC. Hence, the original question: Is there any reason we should be back-referencing the 2009 version of ANSI when local code requires that we follow the newer 2017 version? The answer is that neither ANSI 2017 or the newest release of IBC are approved safe harbors. Meaning that you have to comply with multiple codes, an FHA safe harbor code, as well as the local city and state codes of that jurisdiction.

In case you're wondering, yes, there are requirements in ANSI 2017 that are more stringent than ANSI 2009, but there are also requirements that are less stringent. A project has to be designed to meet the strictest requirement found in either code in order to comply with the FHA as well as the local city/state code. Choosing to not follow the strictest requirement puts a project owner, design team, and contractor at future legal risks for lawsuits and costly alterations.

No, not necessarily. In most jurisdictions, the locally adopted codes are updated on a much faster timeline when compared to HUD’s review and adoption process for new safe harbor codes. For context, 2021 was the first time in 14 years that HUD updated the list of approved safe harbor codes. Local jurisdictions can also make amendments to the code, meaning there might be sections of code that no longer apply or are less stringent from the local perspective, but are still required by the FHA.

A common misconception is the belief that when your project gets approved and permitted by the local building department, that means you complied with the FHA. The local building code officials are not enforcing the FHA, nor are they obligated to review for those technical requirements, as enforcement of the FHA falls under the legal jurisdiction of the DOJ.

While this write-up discussed ANSI 2009 and 2017, please be aware that ANSI 2009 should NOT be automatically picked as the safe harbor. Depending on the project location, it's best to apply a safe harbor code that's compatible and aligns with the local codes in order to avoid conflicts.

If the local jurisdiction adopted IBC, but did not adopt Chapter 11-Accessibility, that will typically entail using the Fair Housing Act Design Manual 1998 as well as ANSI A117.1-1986 or 2003 as the safe harbor code. An example of states where this issue comes up would be Massachusetts and Florida.

If you're unsure if you are in compliance with the FHA requirements or what safe harbor to comply with, feel free to contact us. We have nationwide experience handling all types of projects and would be more than glad to answer any follow-up questions or consult on your project.

Did you know that MAPS also offers accessibility presentations on various accessibility topics? If you're interested in having us present to your company or group, just let us know.