Having it Your Way
by William Perry Pendley
Wyoming Attorney
President & Chief Legal Officer
of Mountain States Legal Foundation
Loggers World - Dec 2002
Some time ago a friend from my youth and his wife built the home of their dreams. For years, they had lived in a tiny apartment, saving their money and clipping articles and photographs from magazines and newspapers knowing that one day they would build it. In time, they bought the land, hired an architect and a builder, and set out to design and build their home exactly as they wanted it. At last it was finished and they moved in. One day, passing through, I visited. When they showed me the rather Spartan quest room, I expressed surprise; there were no closets and no bathroom. "Oh, that's the way we planned it; if anyone comes to visit, they won't stay here."
It is good thing my friend and his wife are not trying to build the home of their dreams today in Pima County, Arizona. For the county in which Tucson is located recently passed an ordinance requiring that all new homes be "visitable". Under the new ordinance, which went into effect in October, newly constructed one-, two- and three-family homes must be built to facilitate "occupancy, accessibility or visitation by a disabled person".
The Pima County ordinance was adopted the same day as one passed by Naperville, Illinois, a Chicago suburb of 120,000. According to advocated for universal access to homes, Austin, Texas; Urbana, Illinois; and Atlanta, Georgia, have ordinances requiring new homes constructed with public funds to meet "visitability" standards. Although the federal American with Disabilities Act, which requires accommodations, generally does not apply to housing, the U.S. Development "encourages" that homes built with federal dollars be "visitable". That may change. Representative Jan Schakousky (D-IL) has announced she will introduce federal legislation requiring all newly-built single family homes receiving federal funds to guarantee "visitability".
Advocates for "visitability" requirements applaud the mandates now being imposed by Pima County and soon to be considered by Congress. "When someone builds a home," said one, "they're not just building it for themselves - that home's going to be around for 100 years." But that is just no so, responds Tom Jenney of the Phoenix, Arizona based Goldwater Institute; they are building it for themselves: "In a free society, homebuyers have a right to buy the homes they want, with or without wheelchair access."
Then there is the cost. Builders in Pima County say the "visitability" standard will add between $2,400 and $5,000 to the cost of a new home. Plus, homes that comply with the ordinance will be sold below market so that the builders will be able to recover those added costs. More than likely, say the builders, the homes will not be sold for any price. Finally, the builders say the visitability standard is illegal because Pima County's authority is limited to electrical, mechanical, or fire codes.
Perhaps most vexing, if not to the home builders who build homes for others then, to homebuyers is Pima County's assault on a host of constitutional guarantees, including the right to own and to decide how to use one's property, the right to exclude others from that property, the right to associate with whom one pleases, and the right not to associate with those from whom on wishes to disassociate.
In early October, 2002, home builders in Pima County challenged the "visitability" ordinance, raising these arguments. The case was dismissed when the judge held that the builders had not been hurt yet and that only homebuyers, not home builders, could raise the constitutional issues. The builders and allied home buyers may soon return to Arizona federal district court: one architect testified that he had eight sets of plans for families who want to build the homes of their dreams; none of them complied with the ordinance! The Arizona case could decide whether homeowners, like my friend and his wife, can have it their way.
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