Case: 1:06-cv-05660 Document #: 36 Filed: 03/21/07 Page 1 of 10 PageID #:145

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ACCESS LIVING OF METROPOLITAN )

CHICAGO, )
)
Plaintiff, )
) 06-CV-5660
vs. )
) Judge Darrah
ZURIC DEVELOPMENT, INC., LASZLO )
SIMOVIC ARCHITECTS, LLC, and ZURIC )
AND SAMARDZIJA REAL ESTATE )
DEVELOPMENT COMPANY, )
Defendants.

FIRST AMENDED COMPLAINT

I. INTRODUCTION AND PRELIMINARY STATEMENT

1. Access Living of Metropolitan Chicago, an organization comprised of, directed

by, and serving people with disabilities, brings this action to enforce the design and construction

requirements of the Fair Housing Amendments Act of 1988, 42 U.S.C. 3604(f)(3)(C). Under

the Act, new multi-family buildings must be accessible to and usable by people with physical

disabilities, thereby increasing the nations stock of accessible housing and, concomitantly,

housing opportunities for persons with disabilities. When incorporated into a buildings design

prior to construction, the cost of complying with the Acts requirements is minimal.

2. Defendants are the owner, developer and architect of a new four story, fourteen-

unit residential building located at 2635-39 W. Lawrence Avenue in Chicago (2635 W.

Lawrence). Because it has four or more units and an elevator, all units at 2635 W. Lawrence

must be accessible to people with disabilities. Defendants, however, built the building without

an accessible entrance on an accessible route and designed and/or constructed the interiors in

violation of the Act.

CH2 20194240.1
 Case: 1:06-cv-05660 Document #: 36 Filed: 03/21/07 Page 2 of 10 PageID #:146

3. These violations are all the more unnecessary and egregious given that

Defendants knew and were informed of their obligations under the Act prior to construction.

Over two years ago, before ground was broken, city architects reviewed the buildings plans and

informed Defendant Laszlo Simovic of the Acts new construction requirements, including the

obligation to ensure that people who use wheelchairs are able to enter the ground-floor units

from the street and to make all units accessible to people with disabilities. Nevertheless,

Defendants designed and constructed both the common areas and ground floor units of 2635 W.

Lawrence to be inaccessible. To remedy these violations and prevent future ones, Plaintiff seeks

declaratory and injunctive relief, as well as compensatory and punitive damages.

II. JURISDICTION AND VENUE

4. This Court has jurisdiction over the subject matter of this action under 28 U.S.C.

1331 and 42 U.S.C. 3613(a). Plaintiffs claims for declaratory and injunctive relief are

authorized under 28 U.S.C. 2201-02 and 42 U.S.C. 3613(c)(l). Plaintiff has suffered

irreparable injury for which monetary damages are inadequate, thereby rendering injunctive

relief appropriate.

5. Venue is proper in the Northern District of Illinois under 28 U.S.C. 1391(b)(2)

because Defendants reside there and because a substantial part of the acts or omissions giving

rise to Plaintiffs claims occurred there.

III. PARTIES

6. Plaintiff ACCESS LIVING OF METROPOLITAN CHICAGO (Access Living)

is a Center for Independent Living established under the Rehabilitation Act of 1973, 29 U.S.C.

796f. Per the Rehabilitation Act, Access Living is comprised of and directed by people with

disabilities. Id. 796f-4(b)(l)(A). Access Livings statutorily-mandated mission is to promote

equal access of individuals with significant disabilities to society and to all services, programs

2
CH2 20194240.1
 Case: 1:06-cv-05660 Document #: 36 Filed: 03/21/07 Page 3 of 10 PageID #:147

and activities, resources and facilities, whether public or private and regardless of funding

source. Id. 796f-4(b)(l)(D).

7. Access Living is the largest Center for Independent Living in Illinois and one of

the largest in the nation. It serves people with physical and other disabilities in Chicago and its

suburbs, and its membership includes people with physical disabilities.

8. A core part of Access Livings mission is to expand the supply of housing

available to and usable by people with disabilities, consistent with the Fair Housing Act. For

people with physical disabilities, the lack of usable housing is one of the primary barriers to

living independently. Access Living works with and trains architects, developers, landlords and

other providers of housing to assist them in designing buildings and apartments that can be used

by people with disabilities. Access Living also conducts fair housing tests to ensure the Acts

requirements are fulfilled. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

9. Consistent with this mission, Access Living expended staff time and resources in

investigating violations at 2635 W. Lawrence. These activities included employing and sending

fair housing testers, having staff visit the building, requesting, gathering and inspecting materials

and documents, and speaking with government officials. Access Living has devoted significant

time, energy, and resources to identify and counteract Defendants discriminatory acts and

omissions; resources that would have been used for other activities.

10. Access Living sues both as a representative of people with disabilities and as an

organization directly injured by the diversion of its resources to combat Defendants

discriminatory acts and omissions. Access Living and its members are directly injured,

economically and otherwise, by Defendants violations of the Fair Housing Act. Access Living

is thus an aggrieved person within the meaning of the Act, 42 U.S.C. 3602(i).

3
CH2 20194240.1
 Case: 1:06-cv-05660 Document #: 36 Filed: 03/21/07 Page 4 of 10 PageID #:148

11. Defendant ZURIC DEVELOPMENT, INC. (Zuric Development) is an Illinois

corporation whose principal place of business is in Chicago. Zuric Development was the

property owner of 2635 W. Lawrence. Zuric Development is located at 1741 W. Crystal in

Chicago.

12. Defendant LASZLO SIMOVIC ARCHITECTS, LLC (Laszlo Simovic) is a

limited liability company located at 6512 N. Artesian Avenue in Chicago. Laszlo Simovic was

the architect for 2635 W. Lawrence.

13. Defendant ZURIC AND SAMARDZIJA REAL ESTATE DEVELOPMENT

COMPANY (Zuric and Samardzija) is an Illinois corporation whose principal place of

business is in Chicago. Zuric Development was the developer for 2635 W. Lawrence. Zuric and

Samardzija is located at 1741 W. Crystal in Chicago.

IV. LEGAL BACKGROUND

14. In 1968, Congress enacted the Fair Housing Act prohibiting discrimination on the

basis of race, gender, national origin, and religion in the provision of housing. In 1988, through

the Fair Housing Amendments Act, Congress extended the laws protections to people with

disabilities.

15. Under the Act, all residential buildings that have four or more units and were first

occupied after March 13, 1991 must comply with design and construction requirements that

enable people with disabilities to live in the building. 42 U.S.C. 3604(f)(3)(C).

16. The Act does not require that buildings with four or more units have an elevator.

However, if a covered building has an elevator, every unit must contain an accessible route into

and through the dwelling that allows people who use wheelchairs or who otherwise cannot

climb stairs to access the unit from the street. Further, public and common use portions of the

dwellings must be readily accessible to and usable by persons with disabilities.

4
CH2 20194240.1
 Case: 1:06-cv-05660 Document #: 36 Filed: 03/21/07 Page 5 of 10 PageID #:149

17. Units required to have an accessible route must also have: (a) environmental

controls in accessible locations; (b) reinforcements in bathroom walls to allow later installation

of grab bars; (c) usable kitchens and bathrooms such that an individual in a wheelchair can

maneuver about the space, and (d) doors that are sufficiently wide to allow passage by

persons who use wheelchairs. Id.

18. The Act authorizes the Secretary of the U.S. Department of Housing and Urban

Development (HUD) to provide technical assistance to implement the Acts accessibility

requirements. 42 U.S.C. 3604(f)(5)(C).

19. Pursuant to this authority, HUD, following notice and comment, issued the Fair

Housing Amendments Act Guidelines (the Guidelines). Vol. 56, No. 44 Fed. Reg. at 9472-

9515 (Mar. 6, 1991), codified at 24 C.F.R. Ch. I, Subch. A, App. II (Apr. 1, 1995). See also

http://www.hud.gov/library/bookshelf09/fhefhag.cfm.

20. Further, in 1996, HUD issued the Fair Housing Act Design Manual to, inter alia,

assist designers, builders, and developers in understanding and conforming with the design

requirements of the Fair Housing Act. Fair Housing Act Design Manual at 2 (Aug. 1996).

V. FACTUAL ALLEGATIONS

A. Fair Housing Testing of 2635 W. Lawrence

21. On May 2 and May 3, 2006, fair housing testers sent by Access Living attended

appointments at 2635 W. Lawrence. One tester was disabled and used a wheelchair and the

other did not. The disabled tester was unable to enter the front or back entrances of the building

due to stairs. The sole means of entry for the disabled tester was by driving his wheelchair down

the parking garage ramp. The non-disabled tester was able to enter through the front entrance of

the building.

5
CH2 20194240.1
 Case: 1:06-cv-05660 Document #: 36 Filed: 03/21/07 Page 6 of 10 PageID #:150

B. Accessibility Violations at 2635 W. Lawrence

22. 2635 W. Lawrence is a newly-constructed, four story, fourteen-unit residential

building. Because it has four or more units and was designed for first occupancy after May 13,

1991, 2635 W. Lawrence is covered under the Act and must comply with its new construction

requirements.

23. 2635 W. Lawrence has an elevator. Accordingly, all units must be accessible to

people with disabilities, including people who use wheelchairs.

24. 2635 W. Lawrence is not accessible to people with disabilities, as set forth under

the Act and Guidelines, as follows:

a. The primary front entrance (also a common area) and the rear entrance

are not accessible entrances on an accessible route because they are

reachable only by stairs;

b. Any plans to install an outdoor lift on the rear entrance would not

constitute an accessible route because: (1) it is not the buildings

primary entrance; (2) an outdoor mechanical lift is prone to temporary

breakdowns and, eventually, permanent inoperability, particularly given

Chicago weather conditions; and (3) the rear entrance lacks sufficient clear

space to allow people with disabilities to safely maneuver and open the

door;

c. The parking garage lacks a parking space that is designated accessible to

people with disabilities;

d. The balcony doors have interior thresholds that exceed the maximum

inch high ramp allowed under the Act and Guidelines. Exterior thresholds

exceed 4 inches, the maximum allowed under the Act and Guidelines; and

6
CH2 20194240.1
 Case: 1:06-cv-05660 Document #: 36 Filed: 03/21/07 Page 7 of 10 PageID #:151

e. Public and common areas, such as the rooftop deck and mailboxes, are not

readily accessible to and usable by a person in a wheelchair.

25. Other violations of the Act and Guidelines may be discovered through discovery.

C. Defendants Prior Knowledge of the New Construction Requirements

26. On March 4, 2004, prior to the initiation of construction, the Chicago Mayors

Office for People with Disabilities (MOPD) reviewed the building plans for 2635 W. Lawrence

to determine their compliance with the Act.

27. As part of this review, an MOPD staff architect certified in writing that he had

informed the architect [Defendant Laszlo Simovic] of the accessibility guidelines under the Fair

Housing Amendments Act. Defendant Laszlo Simovic certified in writing that 2635 W.

Lawrence would comply with the Acts new construction requirements.

28. Despite these certifications, Defendants failed to design and construct 2635 W.

Lawrence to be accessible to people with disabilities, in direct contravention of the Acts new

construction requirements.

VI. CAUSE OF ACTION

Count I: Fair Housing Amendments Act

29. Plaintiff re-alleges and incorporates Paragraphs 1-27 as if fully set forth herein.

30. As a multi-family building with four or more dwelling units that was first

occupied after March 13, 1991, 2635 W. Lawrence is subject to the new design and construction

requirements of the Fair Housing Amendments Act. 42 U.S.C. 3604(f)(3)(C); 24 C.F.R.

100.205.

31. Consequently, Defendants failure to design and construct 2635 W. Lawrence to

be accessible to and usable by people with disabilities violates the Act.

7
CH2 20194240.1
 Case: 1:06-cv-05660 Document #: 36 Filed: 03/21/07 Page 8 of 10 PageID #:152

32. At all times relevant to this action, Defendants have acted intentionally, willfully,

and/or in reckless disregard of the Act by virtue of their prior knowledge and subsequent

disregard of the Acts new design and construction requirements.

33. Plaintiff herein demands a trial by jury.

VII. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests the Court grant the following relief:

1. Declare that Defendants acts and/or omissions violate the Fair Housing

Amendments Act of 1988;

2. Issue injunctive relief;

3. Assess compensatory and punitive damages against Defendants;

4. Award Plaintiff its reasonable attorneys fees and costs; and

5. Award any other such relief as the Court deems just and proper.

8
CH2 20194240.1
 Case: 1:06-cv-05660 Document #: 36 Filed: 03/21/07 Page 9 of 10 PageID #:153

Respectfully Submitted,

ACCESS LIVING OF METROPOLITAN

CHICAGO

By /s/ Michelle K. Mellinger

One of Its Attorneys

Condon A. McGlothlen
Michelle K. Mellinger
Annette Tyman
SEYFARTH SHAW LLP
131 S. Dearborn Street, Suite 2400
Chicago, IL 60603
(312) 460-5000

Max Lapertosa
Kenneth M. Walden
ACCESS LIVING OF METROPOLITAN CHICAGO
614 West Roosevelt Road
Chicago, IL 60607
(312) 253-7000

March 21, 2007

9
CH2 20194240.1
 Case: 1:06-cv-05660 Document #: 36 Filed: 03/21/07 Page 10 of 10 PageID #:154

CERTIFICATE OF SERVICE

The undersigned attorney certifies that a copy of the foregoing First Amended Complaint

was served on the following attorneys of record via electronic filing CM/ECF this 21st day of

March, 2007:

Harlene Matyas
Glenn W. Fischer
Counsel for Laszlo Simovic Architects LLC
TRIBLER, ORBETT & MEYER
225 W. Washington St., Suite 1300
Chicago, Illinois 60606

Stuart N. Rappaport
LINDSAY & RAPPAPORT, LLC
Counsel for Zuric Development, Inc. and Zuric and Samardzija Real
Estate Development Company
221 N. West St.
Waukegan, IL 60085

/s/ Michelle K. Mellinger

Counsel for Plaintiff

CH2 20194240.1