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DENNIS STEINMAN, OSB No. 954250 dsteinman@kelrun.com MATTHEW C. ELLIS, OSB No. 075800 mellis@kelrun.com Kell, Alterman & Runstein, LLP 520 S.W. Yamhill, Suite 600 Portland, OR 97204 Telephone: 503/222-3531 Fax: 503/227-2980 Attorneys for Plaintiff-Intervenor

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION UNITED STATES OF AMERICA, Plaintiff, and FAIR HOUSING COUNCIL OF OREGON, Plaintiff-Intervenor, v. MONTAGNE DEVELOPMENT, INC., MULTI/TECH ENGINEERING SERVICES, INC., DAVID A. MONTAGNE, WILLIAM D. JONES, DAV II INVESTMENT GROUP, LLC, GATEWAY I, LLC AND GATEWAY II, LLC,, Defendants. COMPLAINT IN INTERVENTION CV 11-1191-PK

I. 1.

INTRODUCTION

Plaintiff-Intervenor intervenes in this action for damages for violations of the Page 1
KELL, ALTERMAN & RUNSTEIN, L.L.P. ATTORNEYS AT LAW 520 SW YAMHILL, SUITE 600 PORTLAND, OR 97204 TELEPHONE (503) 222-3531 FACSIMILE (503) 227-2980

Complaint in Intervention

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federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 (the FHAA), 42. U.S.C. 3601-3619, the Americans with Disabilities Act (the ADA), 42 U.S.C. 12181, Oregon Fair Housing Act, ORS 659A.145, and negligence to enjoin and remedy ongoing and systematic violations of these civil rights laws by Defendants in the design, construction and/or operation of covered multifamily dwellings. 2. Pursuant to the FHAA, every multifamily housing building containing four or

more units, and built for first occupancy after March 13, 1991, is subject to the design and construction requirements of the FHAA (covered multifamily dwellings). The FHAA requires all ground floor units, and all units on any floor serviced by an elevator in a covered multifamily dwelling (covered units), as well as public use and common use areas associated with covered units, to contain certain features of minimum accessibility and adaptable design, including: a. Public-use and common-use areas that are readily accessible to, and usable by, individuals with handicaps; b. Doors into and within covered units that are sufficiently wide to allow passage by persons who use wheelchairs; c. d. An accessible route into and through the dwelling; Light switches, electrical outlets, thermostats and other environmental controls in accessible locations; e. Reinforcements in bathroom wails that allow for the later installation of grabbars; and f. Usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 3. Pursuant to the ADA, public-use facilities, such as rental and leasing offices at

apartment complexes, parking lots, sidewalks and restrooms, built for first use after January 26, Complaint in Intervention
KELL, ALTERMAN & RUNSTEIN, L.L.P. ATTORNEYS AT LAW 520 SW YAMHILL, SUITE 600 PORTLAND, OR 97204 TELEPHONE (503) 222-3531 FACSIMILE (503) 227-2980

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1993, are subject to design and construction requirements that enable the full and equal enjoyment of the services, facilities, privileges and accommodations of a place of public accommodation by persons with disabilities. 4. Pursuant to ORS 659A.145(2)(h), every multifamily housing building containing

four (4) or more units, and built for first occupancy after March 13, 1991, is subject to the design and construction requirements of the FHAA, 42. U.S.C. 3601-3619. 5. The United States Congress has made clear that enforcement of these civil rights

laws is necessary to protect people with disabilities from the devastating impact of housing discrimination, including the architectural barriers erected by developers who fail to construct dwellings and public accommodations accessible and adaptable to people with disabilities. See U.S. House of Rep. Report on the FHAA, H.R. Rep. No. 100-711 (1988). Congress declared that such barriers, even if not the product of invidious intent, can be just as devastating as intentional discrimination. H.R. Rep. No. 100-711 at 25 (1988). 6. As described herein, Defendants have engaged in a continuous pattern and

practice of discrimination against persons with disabilities in violation of the FHAA, the ADA, and Oregon law by designing, constructing and operating covered multifamily dwellings, and the common-use and public-use areas associated with those covered dwellings, in such a manner as to deny persons with disabilities access to, and the use of, these facilities as required under these federal and state civil rights laws. 7. This action seeks monetary, declaratory, and injunctive relief against Defendants

for discriminating against individuals with disabilities in violation of federal and state fair housing laws. II. 8. JURISDICTION AND VENUE

Jurisdiction is conferred upon this Court pursuant to 28 U.S.C. 1331 in that the

claims arise under the laws of the United States. This court has jurisdiction over the Fair Complaint in Intervention
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Housing Act claims pursuant to 42 U.S.C. 3612(o). This Court has supplemental jurisdiction pursuant to 28 U.S.C. 1367(a) to hear and determine Plaintiff-Intervenors state claims because those claims are related to Plaintiff-Intervenors federal law claims and arise out of the common nucleus of operative facts. Plaintiff-Intervenors state claims are related to Plaintiff-Intervenors federal law claims such that those claims form part of the same case or controversy under Article III of the United States Constitution. 9. Venue is proper in this district pursuant to 28 U.S.C. 1391 and 42 U.S.C.

3612(o)(1) because all or a substantial part of the events giving rise to the claims alleged herein took place in the District of Oregon. III. 10. PARTIES

Plaintiff-Intervenor Fair Housing Council of Oregon (FHCO) is a private non-

profit corporation formed under the laws of the State of Oregon with its principal place of business located at 506 SW 6th Avenue, Suite 1111, Portland, Oregon. One of FHCOs specific purposes and goals is the promotion of equal opportunity in the renting, purchasing, financing and advertising of housing and elimination of all forms of illegal housing discrimination. To this end, the activities in which FHCO engages include, but are not limited to: (1) investigating allegations of discrimination; (2) conducting tests of housing facilities to determine whether equal opportunity in housing is provided; (3) taking such steps as it deems necessary to assure such equal opportunity and to counteract and eliminate discriminatory housing practices; and (4) providing outreach and education to the community regarding fair housing. 11. FHCO is an aggrieved person within the meaning of the Fair Housing Act, 42

U.S.C. 3602(d) and 3602(i). 12. Gateway Village Apartments are located within the District of Oregon, and

Defendants acts relating to Gateway Village occurred within the District of Oregon.

Complaint in Intervention
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13.

Gateway Village consists of one building that contains 7 multi-level townhouses,

and 29 multi-story non-elevator buildings that contain between 4 and twelve units per building, for a total of 275 residential units. Gateway Village has 112 ground floor units, which constitute covered multi-family dwellings within the meaning of 42 U.S.C. 3604(f)(7). 14. Gateway Village Apartments was designed and constructed in two overlapping

and continuous phases. The architectural and engineering plans for Phase II were completed while construction of Phase I was underway. Five of the seven floor plans for ground floor units are identical in the two phases, and the two phases share common use areas and amenities. 15. The building permits for the subject property were issued between September,

2002 and July 2004. The last certificate of occupancy for covered multi-family dwellings was issued August 3, 2005. 16. Defendants Montagne Development, Inc., Multi/Tech Engineering Services, Inc.,

David A. Montagne, William D. Jones, Dav II Investment Group, LLC, Gateway I, LLC and Gateway II, LLC have been involved in the ownership, development, design and/or construction of Gateway Village Apartments (Gateway Village) in Salem, Oregon. 17. Respondent Multi/Tech Engineering Services, Inc., an Oregon corporation, was

the architect and civil engineer for the subject property. 18. Respondent Montagne Development, Inc., an Oregon corporation, was the

contractor responsible for the construction of Gateway Village Apartments. 19. Respondents David A. Montagne and William David Jones were General Partners

in Dav II Investment Group, an Oregon General Partnership. Dav II Investment Group was the initial developer of the subject property, owning the land from the pre-development stage until the property was divided into two parcels and sold in October 2003. Mr. Montagne was also president and secretary of Montagne Development, Inc., and a principal in the various ownership entities involved in development of the subject property. Complaint in Intervention
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20.

Respondent Dav II Investment Group, LLC, an Oregon limited liability company,

was organized in January 2003. Dav II Investment Group, LLC, was a developer of the subject property. 21. Respondent Gateway I, LLC, an Oregon limited liability company, has been the

owner of record for Phase I of the subject property since October 16, 2003, after construction was completed on this phase. Gateway I, LLC, was not involved in the design and construction of the project but is named as a necessary party, pursuant to Fed. R. Civ. P. 19(a)(1)(A), for the purpose of obtaining full relief, including access to the property for retrofitting. 22. Respondent Gateway II, LLC, an Oregon limited liability company, has been the

owner of record for Phase II of the subject property since October 2003. Gateway II, LLC, was the owner of Phase II of the project during construction. IV. 23. PROCEDURAL HISTORY

On or about July 26, 2006, Plaintiff-Intervenor, FHCO filed a timely Complaint

with the United States Department of Housing and Urban Development (hereinafter HUD), pursuant to Section 810(a) of the Fair Housing Act, as amended, 42 U.S.C. 3610(a). In the Complaint, FHCO alleged that Defendants discriminated against individuals with disability in that Gateway Village Apartments was not built in compliance with the design and construction requirements in violation of the Fair Housing Act. The allegation was based on FHCOs fair housing tests that were conducted by FHCO. 24. Pursuant to the requirements of 42 U.S.C. 3610(a) and (b), the Secretary of

HUD (hereinafter Secretary) conducted and completed an investigation of the Complaint, attempted conciliation without success, and prepared a final investigative report. Based on the information gathered in this investigation, the Secretary, pursuant to 42 U.S.C. 3601(g)(1), determined that reasonable cause exists to believe that discriminatory housing practices had occurred. On August 23, 2011, the Secretary issued a Charge of Discrimination pursuant to 42 Complaint in Intervention
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U.S.C. 3610(g)(2)(A), charging the Defendants with engaging in discriminatory housing practices in violation of the Fair Housing Act. 25. On or about August 26, 2011, Plaintiff-Intervenor FHCO elected to have the

charge resolved in a federal civil action pursuant to 42 U.S.C. 3612(a). 26. Following the election by Plaintiff-Intervenor FHCO, the Secretary authorized the

Attorney General to commence a civil action on behalf of the complainant pursuant to 42 U.S.C. 3612(o). On or about September 30, 2011, the Attorney General filed this action in the United States District Court, District of Oregon. 27. On or about October 11, 2011, FHCO filed a Motion to Intervene as Plaintiff in

this case pursuant to 42 U.S.C. 3612(o)(2). V. 28. NATURE OF THE COMPLAINT

On or about December 27, 2005, Plaintiff-Intervenor FHCO sent a tester to

Gateway Village Apartments to conduct an accessibility survey of the property. The tester, who claimed to be looking for an apartment for her disabled sister, viewed a two-bedroom, two-bath model unit. The FHCO tester observed interior and exterior barriers to accessibility at the property, including excessive slopes on required accessible routes, interior doorways that were too narrow, and bathrooms without the required clear floor space. 29. Plaintiff-Intervenor FHCO, or its representative, obtained copies of building

permits and certificates of occupancy for Gateway Village Apartments and conducted additional investigation prior to filing a complaint with HUD. FHCO has expended funds and staff time on this matter that would have been spent working in other areas such as educational activities, counseling, and enforcement activities. 30. Plaintiff-Intervenor FHCO filed a complaint with HUD on July 26, 2006, alleging

that Gateway Village Apartments was not built in compliance with the design and construction requirements of the Act. Complaint in Intervention
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31.

The public use and common use portions of Gateway Village Apartments are not

readily accessible to and usable by handicapped persons, as required by 42 U.S.C. 3604(f)(3)(C)(i). Specifically, the inaccessible features include, but may not be limited to, the following: (a) one to nine steps along the walkway to the common use breezeway entrances at eight buildings; (b) slopes that exceed 5 percent without handrails on the route to the breezeway entrances at six buildings, with some walks exceeding the 8.3 percent maximum slope allowed for ramps (16 percent measured at one location); (c) no curb ramps at breezeway entrances to four buildings; (d) at 13 locations, running slopes along required accessible routes exceed 5 percent, without handrails (slopes up to 14.3 percent); (e) cross slopes along many required accessible routes exceed 2 percent, with cross slopes at building entrances measuring up to 8.3 percent and at one access aisle, 35 percent; (f) curb ramps with excessive slopes at 13 locations; (g) at one building, there is no vehicular arrival point with a cross slope of less than 2 percent; (h) no accessible route connecting covered ground floor units with some common use features, including the trash dumpster, the two mailbox locations, and some storage units; (i) no accessible carport spaces or detached garages; (j) no accessible parking at the recreation building/leasing office, some mailboxes, or the dumpster; (k) no cane detection barrier below the stairways serving upstairs units; (l) in the recreation building, the kitchen sink, paper towel dispenser, peninsula/bar seating counter, and thermostat are inaccessible; and (m) the restrooms in the recreation/leasing building lack compliant clear floor space at the toilets and seat cover dispensers, and the roll-in showers and saunas are not accessible, lacking adequate clear floor space, accessible controls, and, in the showers, compliant grab bars. 32. All doors designed to allow passage into and within all premises within ground

floor units at Gateway Village are not sufficiently wide to allow passage by handicapped persons in wheelchairs as required by 42 U.S.C. 3604(f)(3)(C)(ii). Specifically, the violations include, but may not be limited to, the following: In some dwelling units, the clear opening width of the Complaint in Intervention
KELL, ALTERMAN & RUNSTEIN, L.L.P. ATTORNEYS AT LAW 520 SW YAMHILL, SUITE 600 PORTLAND, OR 97204 TELEPHONE (503) 222-3531 FACSIMILE (503) 227-2980

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opening to the walk-in closet, the door to the master bathroom, the sliding door to the patio and/or the door to the patio storage room is less than the required nominal 32 inches. For example, the opening to the walk-in closet in one unit measured 25.5 inches wide, the clear opening width of the door to the master bathroom in two units measured 28 inches, and the patio storage doors provide a 30-inch clear opening width. 33. The ground floor units at Gateway Village Apartments lack certain features of

adaptive design required by 42 U.S.C. 3604(f)(3)(C)(iii). Specifically, the violations include, but may not be limited to, the following: a. Gateway Village Apartments lacks an accessible route into and through the dwellings as required by 42 U.S.C. 3604(f)(3)(C)(iii)(I). In all ground floor units, the thresholds at the patio doors are too high and are not beveled. b. The electrical outlets in ground floor units are not located in accessible locations, as required by 42 U.S.C. 42 U.S.C. 3604(f)(3)(C)(iii)(II). The lower

receptacle in duplex outlets is too low, at 13.5 to 14 inches above the finished floor. c. Gateway Village Apartments lacks usable kitchens such that an individual in a wheelchair can maneuver about the space as required by 42 U.S.C. 3604(f)(3)(C)(iii)(III). Some kitchens lack sufficient clear floor space for a

wheelchair user to maneuver about the space and use the fixtures and appliances. For example, in the one-bedroom, one-bath, Plan A units, the range is not usable by a person using a wheelchair as the centerline of the range is located only 18 inches from the adjacent cabinet face; a 30 x 48-inch clear floor space parallel to and centered on the range is required. In some units, the kitchen sink is not usable because the centerline of the sink is 18 to 19 inches from the adjacent cabinet. The refrigerator protrudes into the required clear floor space in many units. Complaint in Intervention
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d.

Gateway Village Apartments lacks usable bathrooms such that an individual in a wheelchair can maneuver about the space as required by 42 U.S.C. 3604(f)(3)(C)(iii)(III). In dwelling units with more than one bathroom, neither bathroom provides sufficient clear floor space for a person using a wheelchair to enter the room, close the door, use all fixtures, and exit. The hall bathroom does not provide adequate clear floor space outside the swing of the door, nor is there a 30 x 48-inch clear floor space parallel to and centered on the sink. Barriers to usability in the master bathroom in these units include the lack of required clear floor space parallel to and centered on the sink, inadequate clear floor space outside the swing of the door, no 30 x 48-inch clear floor space parallel to the shower beginning at the control wall, and/or insufficient clear floor space at the toilet, which is located in a 35.5 inch x 39.5-inch alcove in the 46, two-bedroom, two-bath, Plan B units.

34.

Gateway Village Apartments, as built, fails to conform in some respects with

compliant design elements in the plans for the complex prepared by Defendant Multi/Tech Engineering Services, Inc. The plans for Gateway Village Apartments, including any and all that were prepared by Defendant Multi/Tech Engineering Services, Inc., do not contain and do not reference any individual building tests or site analysis tests that were conducted in accordance with HUDs Fair Housing Accessibility Guidelines and the Fair Housing Act Design Manual. The plans for Gateway Village Apartments, including any and all that were prepared by Defendant Multi/Tech Engineering Services, Inc., do not indicate that any site analysis tests were conducted on the undisturbed site before construction commenced at Gateway Village Apartments. 35. Defendants committed unlawful discrimination by failing to design and construct

covered multifamily dwellings and public use and common use areas at Gateway Village Complaint in Intervention
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Apartments in accordance with the requirements of the Act, 42 U.S.C. 3604(f)(3)(C), and the regulations promulgated thereunder, 24 C.F.R. 100.205. VI. 36. INJURIES

As a result of Defendants wrongful conduct complained of herein, FHCO has

been damaged by the frustration of its mission, and by having to divert significant resources that FHCO would have otherwise used to provide counseling, outreach, education and referral services. Instead, FHCO has devoted substantial resources to identifying, investigating and counteracting Defendants discriminatory policies and practices. 37. By recruiting and training testers, designing and administering the test and

pursuing this claim, FHCO was limited in the ability to perform other functions of FHCOs mission. 38. By being forced to litigate this claim, FHCOs ability to work with landlords in a

trusting relationship to eradicate discrimination is hampered. 39. By reason of Defendants unlawful acts and practices, FHCO has suffered injury

in its ability to carry out its purpose and to serve the public in its effort to eliminate housing discrimination, to resolve fair housing disputes, and to ensure decent rental housing for persons regardless of disability. FHCO has further suffered injury to its ability to assure rights to the important social, professional, business, economic, and political benefits of those associations that arise from living in a community tolerant of and integrated with disabled individuals. Defendants unlawful acts and practices have also caused FHCO to suffer economic losses in staff pay and in the inability to undertake other efforts to end unlawful housing practices. Accordingly, FHCO is entitled to compensatory damages. 40. By engaging in the acts of which Plaintiff complains, Defendants acted with

deliberate indifference to Plaintiffs federal and state rights.

Complaint in Intervention
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41.

In doing the acts of which FHCO complains, Defendants and their agents and

employees acted with oppression, fraud and malice, and with wanton and conscious disregard of the rights of Plaintiff. Accordingly, FHCO is entitled to punitive damages pursuant to 42 U.S.C. 3612(o)(3) and 3613(c). 42. There now exists an actual controversy between the parties regarding Defendants

duties under the federal and state fair housing laws. Accordingly, FHCO is entitled to declaratory relief. 43. Unless enjoined, Defendants will continue to engage in the unlawful acts and the

pattern and practice of discrimination described above. FHCO has no adequate remedy at law. FHCO is now suffering and will continue to suffer irreparable injury from Defendants acts and the pattern or practice of discrimination unless relief is provided by this Court. Accordingly, FHCO is entitled to injunctive relief. VII. CLAIMS

FIRST CLAIM (Federal Fair Housing Act) 44. 45. Plaintiff-Intervenor realleges paragraphs 1 through 43, above. By the actions set forth in paragraphs 28-35, realleged herein, Defendants have

injured FHCO in violation of the federal Fair Housing Act, as amended by 42 U.S.C. 3601, et seq., by committing the following discriminatory housing acts or practices: a. Discriminated in the sale or rental or otherwise made unavailable or denied dwellings to buyers or renters because of handicap in violation of subsection 804(f)(1) of the Fair Housing Act, as amended by 42 U.S.C. 3604(f)(1); b. Discriminated against persons in the terms, conditions or privileges of the sale or rental of a dwelling, or in the provision of services or facilities in Complaint in Intervention
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connection with a dwelling, because of handicap, in violation of subsection 804(f)(2) of the Fair Housing Act, as amended by 42 U.S.C. 3604(f)(2); and c. Failed to design and construct dwellings in compliance with the accessibility and adaptability features mandated by subsection 804(f)(3)(C) of the Fair Housing Act, as amended by U.SC. 3604(f)(3)(C) and the applicable regulations. 46. The actions complained of constitute a continuing pattern and practice of repeated

and continuing FHAA violations in that Defendants have engaged in a systematic and consistent discriminatory pattern and practice of designing and constructing covered multifamily dwellings in violation of FHAA requirements. 47. FHCO has suffered damages, both real and intangible, as a result of Defendants

discriminatory conduct, and as such is an aggrieved person, as defined in 42. U.S.C. 3602(i). 48. The discriminatory actions of Defendants were intentional, willful and taken in

disregard for the rights of FHCO. 49. FHCO is entitled to compensatory and punitive damages pursuant to 42 U.S.C.

3612(o)(3) and 3613(c)(1) and is entitled to attorney fees and litigation costs pursuant to 42 U.S.C. 3613(c)(2). SECOND CLAIM (Americans with Disabilities Act) 50. 51. Plaintiff-Intervenor realleges paragraphs 1 through 43, above. The rental and leasing office at Gateway Village Apartments, and the features and

accommodations appurtenant to these offices, are rental establishments, the operations of which affect commerce, and are public accommodations as defined by 42 U.S.C. 12181(7).

Complaint in Intervention
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52.

The rental and leasing offices, and the facilities and accommodations appurtenant

to the public use of the rental offices, including the parking, sidewalks and restrooms at the offices of Gateway Village Apartments designed and constructed for first use after January 26, 1993, are subject to the prohibition on discrimination contained in 42 U.S.C. 12182(a), and are subject to the design and construction requirements of 42 U.S.C. 12183(a)(1). 53. 54. FHCO found ADA violations at Gateway Village Apartments. Based on the tests conducted by FHCO at Gateway Village Apartments,

Defendants have failed to design and construct Gateway Village Apartments rental and leasing office, and the appurtenant parking, sidewalks and restrooms at that office, in such a manner that the facilities are readily accessible to, and usable by, individual with disabilities. 55. a. The actions of Defendants, as described herein, constitute: Discrimination against individuals with disabilities in the full and equal enjoyment of the services, facilities, privileges and accommodations of a place of public accommodation, in violation of the ADA, 42 U.S.C. 12182(a); and b. A failure to design and construct or remodel public accommodations in compliance with the requirements of the ADA, 42 U.S.C. 12183(a)(l) and (2), and the applicable regulations. 56. The actions complained of constitute a pattern and practice of repeated and

continuing violations of the ADA in that Defendants have engaged in a systematic and consistent discriminatory practice of designing and constructing the rental office and the appurtenant parking, sidewalks and restrooms at the rental office in violation of the requirements of the ADA, and the applicable regulations. 57. The actions of Defendants complained of herein have the effect of denying

FHCO, as well as that segment of the general public with disabilities, access to the rental office

Complaint in Intervention
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and the appurtenant parking, sidewalks and restrooms at the rental office at Gateway Village Apartments. 58. FHCO is an aggrieved person and this Court is entitled to grant such relief it

considers appropriate pursuant to 42 U.S.C. l2188(b)(2), including temporary and permanent injunctive relief, as a result of Defendants wrongful conduct. 59. Plaintiff-Intervenor FHCO is entitled to reasonable attorney fees and costs

pursuant to 42 U.S.C. 12188(a)(1), referring to 2000a-3(b). THIRD CLAIM (Oregon Fair Housing Act) 60. 61. Plaintiff-Intervenor realleges paragraphs 1 through 43, above. By the actions set forth in paragraphs 28-35, Defendants injured FHCO in

violation of the Oregon Fair Housing laws by committing the following discriminatory housing practices: a. Discriminated in the sale or rental or otherwise made unavailable or denied dwellings to buyers or renters because of handicap in violation of ORS 659A.145(2)(a); b. Discriminated against persons in the terms, conditions or privileges of the sale or rental of a dwelling, or in the provision of services or facilities in connection with a dwelling, because of handicap, in violation of ORS 659A.145(2)(c); and c. Failed to design and construct dwellings in compliance with the accessibility and adaptability features mandated by subsection 804(f)(3)(C) of the Fair Housing Act, as amended by U.SC. 3604(f)(3)(C) and the applicable regulations in violation of ORS 659A.145(2)(h). Complaint in Intervention
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61.

FHCO has been injured as a result of Defendants discriminatory conduct and is

entitled to compensatory damages and equitable relief pursuant to ORS 659A.885. 62. The discriminatory actions of Defendants were intentional, willful and taken in

disregard for the rights of FHCO. Accordingly, FHCO is entitled to punitive damages pursuant to ORS 659A.885. 63. FHCO is entitled to attorney fees and litigation costs pursuant to 659A.885. FOURTH CLAIM (Negligence) 64. 65. Plaintiff-Intervenor realleges paragraphs 1 through 43, above. Defendants owed Plaintiff-Intervenor a duty to design, construct, and operate

Gateway Village Apartments in a manner that is free from unlawful discrimination. Defendants negligently violated that duty in failing to acquaint themselves with Fair Housing laws and the prohibitions against discrimination based on disability and in denying housing to FHCO on the basis of disability. 66. As a legal result of Defendants negligent conduct, FHCO has suffered injury to

its ability to carry out its purpose and to serve the public in its effort to eliminate housing discrimination, to resolve fair housing disputes, and to ensure decent rental housing for persons regardless of disability. FHCO has further suffered injury to its ability to assure rights to the important social, professional, business, economic, and political benefits of those associations that arise from living in a community tolerant of and integrated with disabled individuals. Defendants unlawful acts and practices have also caused FHCO to suffer economic damages in staff pay and in the inability to undertake other efforts to end unlawful housing practices. As such, Plaintiff is entitled to compensatory damages. /// /// Complaint in Intervention
KELL, ALTERMAN & RUNSTEIN, L.L.P. ATTORNEYS AT LAW 520 SW YAMHILL, SUITE 600 PORTLAND, OR 97204 TELEPHONE (503) 222-3531 FACSIMILE (503) 227-2980

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VIII. REQUEST FOR RELIEF WHEREFORE, Plaintiff-Intervenor prays that the Court enter an Order that: 1. Declares that the discriminatory practices of Defendants violate the Fair Housing

Act as amended by 42 U.S.C. 3601-3619, the Americans with Disabilities Act, 42 U.S.C. 2181, and the Oregon Fair Housing Act, ORS 659A.145; 2. Enjoins Defendants from all practices complained about herein and imposes

affirmative injunctive relief requiring Defendants, their officers, employees, agents, successors, and all other persons in active concert or participation with any of them, to take affirmative action to provide equal housing opportunities to all tenants and prospective tenants without regard to disability; 3. Enjoins Defendants, their officers, employees, agents, successors, and all other

persons in active concert or participation with any of them, from: a. Discriminating in the rental, or otherwise making unavailable or denying dwellings to renters because of handicap in violation of subsection 804(f)(1) of the Fair Housing Act, as amended by 42 U.S.C. 3604(f)(1); b. Discriminating against any person in the terms, conditions or privileges of the rental of a dwelling, or in the provision of services or facilities in connection with a dwelling, because of handicap, in violation of subsection 804(f)(2) of the Fair Housing Act, as amended by 42 U.S.C. 3604(f)(2); c. Failing or refusing to bring the ground-floor dwelling units and public use and common use areas at Gateway Village Apartments into compliance with 42 U.S.C. 3604(f)(3)(c) and 42 U.S.C. 12183(a)(l) and (2); d. Failing or refusing to take such affirmative steps as may be necessary to restore, as nearly as practicable, persons harmed by Defendants unlawful practices to the position they would have been in but for the discriminatory conduct; Complaint in Intervention
KELL, ALTERMAN & RUNSTEIN, L.L.P. ATTORNEYS AT LAW 520 SW YAMHILL, SUITE 600 PORTLAND, OR 97204 TELEPHONE (503) 222-3531 FACSIMILE (503) 227-2980

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e.

Failing or refusing to take such affirmative steps as may be necessary to prevent recurrence of any discriminatory conduct in the future, and to eliminate, to the extent practicable, the effects of their unlawful practices;

f.

Designing and/or constructing any covered multifamily dwellings in the future that do not contain the accessibility and adaptability features required by 42 U.S.C. 3604(f)(3)(c); and

g.

Designing and/or constructing or remodeling public accommodations that do not contain the accessibility and adaptability features required by the ADA, 42 U.S.C. 12183(a)(l) and (2), and the applicable regulations.

4.

If necessary, enjoins Defendant Gateway I, LLC, pursuant to FRCP Rule 19, from

engaging in conduct that denies access to Gateway Village Apartments, or from failing to take any other action appropriate to ensure that any retrofits required to bring Gateway Village Apartments into compliance with the accessibility provisions of the FHAA, the ADA and Oregon law can be done in a prompt and efficient manner; 5. Requires Defendants to attend and pay for an education training, approved or put

on by HUD, and that focuses on the impacts of discrimination in the housing context; 6. Awards actual cost damages as would fully compensate FHCO caused by

Defendants discriminatory conduct pursuant to 42 U.S.C. 3612(o)(3), and 3613(c)(1) and ORS 659A.885; 7. Awards frustration of mission, diversion of resources, and lost opportunity

damages as would fully compensate FHCO caused by Defendants discriminatory conduct pursuant to 42 U.S.C. 3612(o)(3), and 3613(c)(1) and ORS 659A.885;

Complaint in Intervention
KELL, ALTERMAN & RUNSTEIN, L.L.P. ATTORNEYS AT LAW 520 SW YAMHILL, SUITE 600 PORTLAND, OR 97204 TELEPHONE (503) 222-3531 FACSIMILE (503) 227-2980

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8.

Awards punitive damages to FHCO pursuant to 42 U.S.C. 3613(c)(1) and

pursuant to state law. 9. Awards attorney fees and litigation costs pursuant to 42 U.S.C 3613(c)(2), 42

U.S.C. 12188(a)(1), and ORS 659A.885; and 10. Awards all such other relief as the Court deems just.

DATED this 20th day of October, 2011.

s/ Dennis Steinman DENNIS STEINMAN 954250 MATTHEW C. ELLIS 075800 503/222-3531 Of Attorneys for Plaintiff-Intervenor

Complaint in Intervention
KELL, ALTERMAN & RUNSTEIN, L.L.P. ATTORNEYS AT LAW 520 SW YAMHILL, SUITE 600 PORTLAND, OR 97204 TELEPHONE (503) 222-3531 FACSIMILE (503) 227-2980

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