United States District Court, E.D. Virginia, Richmond Division
JAMES R. SPENCER, Senior District Judge.
THIS MATTER is before the Court on a Motion to Dismiss, filed by Defendants Hunt Investments, L.L.C., Cedar Street Genesis, LLC and Genesis Homes Manager, LLC ("Hunt Motion") (ECF No. 79); a Motion to Dismiss, filed by MGT Construction Management, Inc. ("MGT Motion") (ECF No. 81); and Defendant Walter Parks, Architect, PLLC Motion to Dismiss Plaintiffs' Second Amended Complaint ("Parks Motion") (ECF No. 83). The Court dispenses with oral argument because the facts and legal contentions are adequately presented in the materials before the Court, and oral argument would not aid in the decisional process. E.D. Va. Loc. Civ. R. 7(J). For the reasons set forth below, each of the above-listed Motions is hereby DENIED.
a. Factual Background 
This is a civil rights action brought by Plaintiffs NFHA and HOME against the developers, builders, designers, and owners of the multifamily apartment complex "Shockoe Valley View Apartments" (also known as "Cedar Street Apartments") located in Richmond, Virginia, arising from violations of the accessibility requirements of the Fair Housing Act, Title VII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 ("FHAA"), 42 U.S.C. §§ 3601-3619. Specifically, the Defendants in this case are: Hunt Investments, L.L.C. ("Hunt"), Cedar Street Genesis, LLC ("Cedar Street"), Genesis Homes Manager, LLC ("Genesis Homes")-all of whom are allegedly responsible for the design and/or construction of the project; Walter Parks, Architect, PLLC ("Parks")-who is the architect responsible for the design of the project; and MGT Construction Management, Inc. ("MGT")- who is the general contractor on the project.
In June 2014, Plaintiffs allege that they became aware that the multifamily housing complex designed and/or constructed by Defendants did not include the required elements of accessible and adaptable design. Plaintiffs therefore sent "testers" to Shockoe in June 2014. The testers were shown several available units in the covered apartment complex that were available for immediate rental and move-in. In addition, they observed that several units were already rented and occupied. Plaintiffs' testers identified multiple FHAA design and construction violations in the units they saw and in the common areas.
In September 2014, Plaintiffs sent another tester to Shockoe, who was shown several available units in the covered apartment complex that were available for immediate rental and move-in. This tester also observed that several units in the covered apartment complex were already rented and occupied. She identified multiple FHAA design and construction violations in the units she saw and in the common areas.
Defendants' agent attempted to show the tester the model unit, but the tester, who uses a motorized wheelchair, could not enter the model unit because there were steps leading up to the only entrance. The tester observed that several of the units on the ground floor of the covered apartment complex, including units that were occupied, were similarly inaccessible to individuals with disabilities because the only entrance to the unit required an individual to go up steps.
Defendants submitted blueprints for the covered apartment complex to the City of Richmond Building Department in order to obtain building permits. These blueprints allegedly demonstrate that the FHAA design and construction violations identified by the testers in the units they saw are extremely likely to be present in all of the units in the covered apartment complex.
On November 25, 2014, an accessibility consultant hired by Defendants conducted an accessibility inspection at the covered apartment complex. The consultant confirmed that the dwelling units contained violations of the Fair Housing Act Accessibility Guidelines ("FHAAG"), identified by Plaintiffs, including a failure to provide accessible visitor parking, exterior doors to balconies with excessively high thresholds, and insufficient centered clear floor space at the range in the kitchen. The consultant also found additional violations of the FHAAG, including a failure to provide appropriate signage, excessive slopes in resident accessible parking spaces, excessive slopes throughout the property, an excessively high drop box for tenants to submit rent checks, and a failure to provide an accessible route to the community garbage dumpster.
As of May 8, 2015, all of the units in the covered apartment complex are either being rented to members of the public or are available to the public to rent immediately. The City of Richmond has issued temporary and partial certificates of occupancy permitting residence throughout the covered apartment complex. The only portions of the building that are still under construction are the public areas associated with the clubhouse, a structure that is entirely separate from the building containing the 151 dwelling units and is not included in the claims presented here. The "certificate of occupancy" for the entire building cannot and will not be granted until the public areas associated with the clubhouse are complete.
b. Procedural Background
Plaintiffs filed their Complaint in this Court on October 21, 2014, requesting declaratory and injunctive relief as well as damages and attorneys' fees. Defendants subsequently filed Motions to Dismiss. ( See ECF No. 6, 9, 12). Those Motions to Dismiss were denied as moot after Plaintiffs filed their Amended Complaint. ( See ECF No. 43.) Defendants subsequently filed motions to dismiss the Amended Complaint on December 10, 2014, (ECF Nos. 30, 32, 34), pursuant to Federal Rule of Civil Procedure 12(b)(1). After oral argument on April 7, 2015, the Court granted each of the Motions to Dismiss, finding that the claims were not ripe for adjudication. ( See ECF Nos. 60, 61.) Plaintiffs then filed a Motion for Reconsideration on May 8, 2015. (ECF No. 63.) The Court granted the Motion for reconsideration on June 2, 2015, (ECF Nos. 74, 75) and accordingly vacated its previous Order granting Defendants' Motions to Dismiss.
On June 2, 2015, Plaintiffs filed their Second Amended Complaint. (ECF No. 76). Defendants then filed the present motions to dismiss the Second ...