Case Details

Summary judgment was entered against Sheils, Shanrie and Netemeyer and in favor of the Government and the case against TWM proceeded to trial. 

TWM's work was limited to drawings for rough grading and location of underground utilities on the lot where Applegate Apartments were eventually constructed.  TWM prepared a preliminary plat and drawings for rough grading, storm water drainage, location of the water main and sanitary sewer main and the street plan.  TWM also assisted in preparing a proposal to the Village of Swansea to obtain the proper zoning approval for the apartment concept.  TWM prepared a proposal with required narrative information, exhibits and concept drawings.  These concepts were provided to the Planning Commission to give them an impression of the project sufficient for zoning review and were not intended to be used to obtain building permits, nor did the contain enough detail to construct the site features such as sidewalks, paths, finished grades, steps and spot elevations for the parking lot.  Planning commission approval and a vote by the Village Board is a necessary step in getting the apartments built.

However, the concept drawings TWM submitted to the Village for planning commission review contained a legend with boxes checked:  "for review, for bidding, for constructions."  Also, the first sheet of the concept plans was marked "Issued for Construction, " however bearing a date many months before the planning commission meeting.  The reason the drawings had these designations was because of the fact that the plans were actually the improvement plans issued for construction many months before for the sewer and water lines, however those plans had the building footprints of the apartments superimposed on them for the benefit of the planning commission.  The US Attorney argued that these plans were revised a number of times to reflect changes to the grading plans and also showed building finished floor elevations which was enough participation in the planning process to be responsible under the act for "design".  TWM never signed and sealed any plans relating to the apartment buildings themselves.

TWM noticed that the final architectural plans for Applegate Apartments signed and sealed by Netemeyer, unlike an earlier draft TWM had received, did not include a wheelchair accessible ramp to the front entrance of the lower level units in the two-an-a-half-story apartment buildings.  Instead, the architectural plans included a note stating that "accessibility shall be provided to the rear door, by others."  TWM was concerned about wheelchair accessibility and believed that Shanrie was required to provide a wheelchair accessible entrance to the front doors of the apartment units.  They expressed their concerns about accessibility to Sheils.  Mr. Sheils indicated that he had already consulted with Netemeyer, a structural and civil engineer who reviewed the architectural plans prepared by others.  Mr. Sheils said the ramps had originally been on the drawings, but that he had been advised by Mr. Netemeyer that it would be less expensive to provide an accessible route to the rear doors instead.

Although the zoning submittal was not intended to be used for construction, TWM also addressed its concerns with accessibility by adding an "ADA Accessibility" note to the zoning proposal, indicating that the owner/developer (Sheils) would provide a ramp to the rear of the buildings and that there should be sufficient space between the buildings to allow for the construction of such ramps pursuant to the owner's choice.  TWM also added a note the zoning proposal regarding the number of handicapped parking spaces to be provided by the owner. 

Shanrie did not consult TWM's engineering work with respect to any element related to accessibility or the requirements of the FHA when constructing Applegate Apartments.  Further, Shanrie did not construct Applegate Apartments in accordance with the concept drawings prepared by TWM.  Plaintiff's expert said that the TWM plans were civil site plans for the project and that TWM was liable for violating the act by setting the apartments finish floor levels and participating in the design of the site without showing accessible routes or ramps on the plans.

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