MOTION TO ADOPT WEST VILLAGE=S PROPOSAL FOR REMEDIATION AND BRIEF IN SUPPORT THEREOF - Page 1

IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF TEXAS 

 DALLAS DIVISION 

JOSH WHITAKER, MONIQUE '

JANNETTE and LESLIE GREER, '

 Plaintiffs, ' CIVIL ACTION NO. 

'

v. ' 3:03-CV-0411-P 

'

WEST VILLAGE LIMITED ' CLASS ACTION

PARTNERSHIP and PPC/IMA '

INTOWN VILLAGE LIMITED '

PARTNERSHIP, ET AL., '

Defendants/Cross-Claimants/Third-Party Plaintiffs. '

______________________________________________________________________ 

PATRICIA SAPP, '

Plaintiff, '

' CIVIL ACTION NO. 

v. '

' 3:06-CV-1018-P 

CWS APARTMENT HOMES, L.L.C., '

ET AL., '

Defendants. '

MOTION TO ADOPT WEST VILLAGE=S PROPOSAL 

FOR REMEDIATION AND BRIEF IN SUPPORT THEREOF

Pursuant to this Court’s Order of April 12, 2010 directing the parties to file a 

brief setting forth discussions of the two (2) remaining issues for resolution no later than 

April 30, 2010, West Village offers the following: 

Introduction

1. The parties’ Consent Decree requires an analysis of apartment 

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accessibility and remediation where called for. This dispute arises regarding the 

remediation plan to be adopted by the Court. Two issues exist: 

Statement of Issues and Facts

2. Regarding the inclusion of resident-owned lofts located within the West 

Village complex, West Village does not take a position as to whether these lofts are 

covered by the Consent Decree; rather, it leaves that dispute to be addressed by 

plaintiffs and defendant CWS. Should the Court include lofts for remediation purposes, 

West Village stands ready to perform remediation obligations under the Consent Decree 

for those units. 

3. The other issue remaining for the Court’s resolution concerns the 

methodology to be adopted by the Court for specific kitchen modifications involving 

either: (a) the pathway clearance between opposing kitchen counters; or (b) the 

creation of a 48” parallel approach to kitchen stove cook tops. The parties have agreed 

on all other phases of remediation. 

4. West Village has physically examined the apartments within the West 

Village complex which present possible kitchen pathway clearance or parallel approach 

issues and has determined that twenty-one (21) apartment units require some adjustment 

to achieve minimum pathway clearance between opposing kitchen counters, and 

twenty-seven (27) units require some adjustment to establish a 48” parallel approach to 

stove cook tops (see Affidavit of Robert Bagwell attached hereto as Exhibit AA@). 

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5. The Fair Housing Act Accessibility Guidelines (FHAAG, Section 7.1 of 

Chapter 7) and the Fair Housing Act Design Manual (FHADM) set forth a 40" pathway 

clearance between opposing kitchen counters and a 48” parallel approach to stove cook 

tops. Based upon the measurements conducted by West Village of these apartments, 

forty-six (46) of these forty-eight (48) apartment units could achieve compliance by the 

methodology suggested below by West Village. There are two (2) units in the West 

Village complex which will require the movement of an entire kitchen counter system 

to obtain the requisite 40" clearance set forth above. 

6. West Village understands from discussions with the Court’s Registered 

Accessibility Specialist (RAS) Gaila Barnett and counsel for the plaintiff class that both 

will accept a 1" deviation from the 40" standard set forth in the above FHA documents. 

This would mean that a minimum of 39" would be required for the pathway clearance 

between opposing counters and opposite cabinet faces or appliances. Construction 

standards would allow a deviation of up to 1" from this in the ordinary course of 

constructing new apartments. 

7. With this clearance issue in mind, West Village proposes to replace 

refrigerator appliances in forty-six (46) of the forty-eight (48) units in need of specific 

kitchen modifications at once or in the alternative, upon actual Tenant request as 

evidenced by a Check Box option in the apartment lease. The RAS has also 

recommended that CWS could retain use of the existing refrigerators until such time as 

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when a Tenant or prospective Tenant requests greater kitchen pathway clearance by 

adding a Check Box option to its lease, at which time West Village has agreed to 

replace the protruding refrigerator with a modern compliant refrigerator at its expense 

(information on refrigerator manufacturer attached). 

8. By replacing existing protruding refrigerators with appliances not as deep, 

the 39” or more pathway clearance is achieved, and the 48” parallel approach to stove 

cook tops is also achieved. West Village proposes this as its corrective or remediation 

measure for these forty-six (46) apartment kitchens. 

9. CWS has rejected this remediation approach as being too burdensome, 

and rather has insisted that West Village physically move the kitchen counter islands in 

all forty-eight (48) units, requiring a deconstruction and reconstruction of the kitchen 

islands in these units. CWS has adamantly declined to agree to replacement of 

refrigerators as a remediation methodology or to allow prospective Tenant requesting 

increased kitchen pathway clearance or 48” parallel approach via the Check Box option, 

even though the proposed refrigerators appear to be in better scale in the kitchens (see 

photos attached). 

10. The cost of replacing refrigerators is approximately One Thousand Dollars 

($1,000.00) per unit; the cost of moving kitchen counter islands or relocating the 

refrigerator to the pantry area, and constructing a new pantry at the existing refrigerator 

location is approximately Seven Thousand Dollars ($7,000.00) per unit. 

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11. While either method (exchange of appliances or moving kitchen islands 

and relocating refrigerators and building new pantries) provides the minimum clearance 

for FHAAG/FHADM kitchens, the refrigerator approach will cost approximately FortySix Thousand Dollars ($46,000.00), while relocating kitchen counter islands, moving 

refrigerator locations and building new pantries will cost approximately Two Hundred 

Seventy Six Thousand Dollars ($276,000.00). This additional Two Hundred Thirty 

Thousand Dollar ($230,000.00) cost is the additional Aprice tag for the CWS position. 

12. Because of West Village’s agreement to indemnify CWS as part of the 

terms of sale of the West Village apartments to CWS, West Village must pay the costs 

of whichever remediation this Court orders. 

13. In the Consent Decree approved by this Court, there is a provision for 

considering “. . . unreasonable difficulty or expense . . .” in achieving remediation. In 

paragraph 3 of the Consent Decree, “Modification” this language allows the Court to 

consider this cost and difficulty issue when the parties cannot agree upon the proper 

approach. West Village requests that the Court do so under the terms of paragraph 3.0 

of the Consent Decree. 

Argument

14. The parties’ rights and duties are set forth in the Consent Decree. The 

Consent Decree terms embrace the Fair Housing Act, 42 U.S.C. '3601 et. seq., its 

regulations (24 CFR 100.1, et seq.) and accessibility guidelines (the “FHAAG”). It is 

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obvious that more than one method exists to provide requisite and required clearance for 

the kitchens at issue. As stated above, there are forty-six (46) apartments which may be 

resolved by West Village’s approach; only two (2) would require physical movement of 

the kitchen counter islands. West Village is prepared to move these two islands. 

15. One methodology is simple and cost-efficient - that of West Village. The 

other approach is considerably more involved, more time consuming and costs fourtimes as much B the proposal of CWS. Both methodologies indeed provide compliant 

kitchens in the apartments at issue. However, as contemplated by the Consent Decree’s 

paragraph 3, one method - that urged by CWS - is unreasonable in expense and 

difficulty. 

16. West Village’s proposal to exchange refrigerators is both simple and costeffective. If CWS prefers, West Village can provide the “less deep” refrigerators upon 

request of a tenant by use of a “Check Box” option in the apartment lease. West Village 

can also perform their proposed remediation at one time by replacing all refrigerator 

units in the forty-six (46) apartments described above. Each apartment would be 

furnished a refrigerator unit with less depth and thereby achieve a 39" or greater 

clearance for an accessible path of travel in the kitchen. West Village’s proposal would 

cause no construction down-time nor loss of rent to CWS, but this loss would be 

occasioned by the deconstruction and reconstruction of kitchen counter islands proposed 

by CWS. 

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17. CWS, in its proposal, would endure the loss of an apartment for the time 

required to move a kitchen counter island forty-six (46) times, not to mention the issue 

of putting up with construction trash and waste and possible inconvenience to other 

tenants. No better compliance concerning Consent Decree terms would be gained by 

the CWS deconstruction/reconstruction proposal. The singular difference is that CWS' 

insistence on kitchen counter island relocation would be that West Village would incur 

almost six (6) times as much expense, while achieving the same compliance as under its 

appliance exchange proposal. 

18. The Consent Decree in paragraphs 2.1, 2.2 and 2.10 gives the Court 

guidance regarding accessible kitchens. The Consent Decree embraces the FHAAG in 

particular. These guidelines (Requirement No. 7) stipulate that there should be a 40" 

clearance between kitchen counter cabinet faces on the one side and appliance or 

cabinet-faces on the other. It requires a 48" parallel approach to cook tops. See 

attached 24 CFR 100.205, FHAAG No. 7 and the diagram from the FHA Design 

Manual (FHADM) attached hereto as Exhibit AB@. The plaintiffs, the Court’s RAS and 

West Village believe that 39" clearance is sufficient for this purpose. 

19. Nothing in the statute, Code of Federal Regulations, FHAAG or the FHA 

Design Manual provide a preference for one method of remediation of kitchen 

accessibility over another. By analogy, the regulations interpreting the Americans with 

Disabilities Act, 42 U.S.C. §12101, et seq. make clear that removal of barriers for the 

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disabled should be accomplished without much difficulty or expense. See 29 CFR 

§36.304. The Consent Decree allows the Court to control unreasonable expense and 

difficulty in the remediation process in Consent Decree paragraph 3. The proposal for 

kitchen remediation by West Village is by far the only reasonable method of achieving 

accessible and compliant kitchens. 

Conclusion

19. West Village urges the Court to adopt its proposal for remediation of the 

forty-six (46) apartment units in dispute as the simplest, most cost-efficient method of 

providing accessibility consistent with the Consent Decree and the parties’ duties and 

obligations thereunder. 

Respectfully submitted, 

 /s/Edward B. Cloutman, III 

Edward B. Cloutman, III 

(Bar No. 044 110 00) 

Law Offices of 

 Edward B. Cloutman, III 

3301 Elm Street 

Dallas, Texas 75226-2562 

(214) 939-9222 

(214) 939-9229 (Telecopier) 

COUNSEL FOR DEFENDANTS/CROSSPLAINTIFFS WEST VILLAGE 

LIMITED PARTNERSHIP & PPC/IMA 

INTOWN VILLAGE LIMITED 

PARTNERSHIP 

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been 

served upon the below-listed counsel of record, by placing same in the United States Mail, 

postage prepaid, on this the 30th day of April, 2010: 

Mr. Kenneth D. Carden 

Ms. Lydia K. Springer 

The Carden Law Office 

1409 South Lamar, Suite 601 

Dallas, Texas 75220 

Mr. Palmer D. Bailey 

Law Office of Palmer D. Bailey 

16633 Dallas Parkway, Suite 600 

Addison, Texas 75001 

Mr. Richard M. Hunt 

Munsch, Hardt, Kopf & Harr, P.C. 

3800 Lincoln Plaza 

500 N. Akard Street 

Dallas, Texas 75201 

 /s/ Edward B. Cloutman, III 

Edward B. Cloutman, III 

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Existing Refrigerator Proposed 24” Summit Refrigerator 

Information about the manufacturer of Summit Refrigerators. 

About Us 

For forty years, SUMMIT Appliance has built its name on quality, innovation, and reliability. 

We're just getting started. 

MOTION TO ADOPT WEST VILLAGE=S PROPOSAL FOR REMEDIATION AND BRIEF IN SUPPORT THEREOF - Page 10

Case 3:03-cv-00411-P Document 303 Filed 04/30/10 Page 10 of 12 PageID 2883
Company History 

Felix Storch, Inc. was founded in 1969 and has been a leading supplier of compact, specialty, commercial, and 

medical refrigerators and freezers ever since. In our first year, we trademarked the SUMMIT® brand name to 

guarantee quality at the highest level. We began our distribution in Long Island City, New York, before moving 

to the Bronx in 1983, where our headquarters are now located at 770 Garrison Avenue. Due to continued 

growth, we recently acquired a state-of-the-art warehouse facility in Edison, New Jersey, bringing our total 

property for product development, manufacturing, and warehousing to over 200,000 square feet. Our products 

now include a wide range of major appliances sold both nationally and internationally. We proudly deliver to the 

Northeastern United States using our own SUMMIT trucks. Despite our expansion, we remain a private, familyowned business with no outside investors. 

MOTION TO ADOPT WEST VILLAGE=S PROPOSAL FOR REMEDIATION AND BRIEF IN SUPPORT THEREOF

Something For Everyone 

Today, we carry over 600 models of specialty refrigerators and freezers, including the largest range of fully 

automatic defrost compacts available on the market. Additionally, our product line consists of ranges, 

microwave ovens, cooktops, combination kitchens, washers and dryers, beer dispensers, wine cellars, and 

more. With our expanding line of built-in and freestanding units, SUMMIT serves a variety of household, 

commercial, and scientific markets. Specialized compact products for offices, schools, and food service 

establishments, refrigerators and freezers for medical and laboratory storage, minibars for hotels, and the 

industry's largest selection of weather-proof outdoor refrigerators are just a few of the items you can find in our

always expanding catalogue. 

What Makes Us Different 

From innovative design to superior construction, SUMMIT products embody quality from the inside out. Our 

models can be modified to meet specific customer needs, whether that means adding brass finishes to a beer 

dispenser for a dramatic look or installing digital controls on laboratory coolers for user flexibility. We offer a full

range in style and size that includes our unique thin-line models, designed to fit in those commonly found but 

hard-to-fill narrow spaces. We have one of the industry's largest collection of ADA compliant appliances and 

proudly manufacture a dozen models of ENERGY STAR listed products. 

Inspiration At Home 

SUMMIT takes pride in its homegrown workforce and strives to keep much of its production in-house and in the 

USA. In 2007, SUMMIT matched a $248,000 grant from the NYC Department of Small Business with $300,000 

of its own investment to provide specialized training to its employees. Seventy-five members of the SUMMIT 

team completed a year-long course in subjects such as quality control, customer service, packaging, lean 

 - Page 11

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manufacturing, assembly, safety and warehousing. In light of its success for both SUMMIT and New York, the 

program was renewed for 2009, with an expanded curriculum that adds instruction in ESL and mathematics. 

The combination of our NYC roots and national customer base has enabled us to take a unique look at the 

appliance challenges presented by the smaller kitchen. As a result, we have developed the industry's largest 

selection of products that address this need. 

Read about the success of our training program in The New York Times

Innovation At Every Step 

Nothing goes into a SUMMIT box before we've thought outside it. Take, for example, our most recently 

trademarked products that bring beer storage to new levels--literally. Our COLD CAVERNTM beer froster chills 

beer just above the freezing point while our new PUB CELLARTM keeps ales at a warmer temperature for 

connoisseurs with more European tastes. Wine enthusiasts can enjoy our latest stainless steel wine cellar that 

simultaneously chills bottles of white while preserving red with a thoughtful dual thermostat. We continue to 

advance refrigeration with expanded use of auto-defrost technology and size innovation. 

Read about the new direction of refrigeration in The New York Times

The Future Is Now 

Our product development is continuously evolving to serve the community with care. Many of our newest pieces

offer environmentally friendly solutions without sacrificing performance, such as our exclusive line of built-in 

induction cooktops that require half the time and energy used by gas and electric ranges. We now provide the 

option of adding energy saving self-closing doors to our compacts. In 2010, our line will expand to include even 

more ENERGY STAR compact units. Since many of our appliances are used for medical and scientific purposes, 

we pay special attention to answering laboratory needs with our most reliable technology and design. For 

example, our new MED series of vaccine refrigerators and freezers are specially designed to protect cooler 

contents by stabilizing interior temperature with more precision than previously available units. While we 

continue to take pride in our proven models, we will never stop creating innovative upgrades and improvements

that benefit our consumers in the best possible way. 

We serve our markets through a variety of distributors and wholesalers, a large network of dealers, and some 

catalog and online retailers. If you need additional information about our products, we encourage you to 

explore our product catalogue. Contact our sales department at 1-800-932-4267 or email us at 

info@summitappliance.com

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