OPINION AND ORDER
Defendant McNary Estates Homeowners Association, Inc., (“HOA”) denied plaintiffs Khrizma, Renee, and Gary Kuhn’s request for an exception to the HOA’s restrictive covenant prohibiting residents of McNary Estates from parking large vehicles in their driveways. Plaintiffs sought the exception because they asserted the ability to park a Class C RV in front of their home was necessary for Khrizma, who is disabled, to use and enjoy the dwelling. After the HOA denied plaintiffs’ request, plaintiffs filed this action against the HOA and its president, defendant Teresa Girod,
BACKGROUND
The facts in this case are largely undisputed. Renee and Gary Kuhn are the parents of Khrizma Kuhn. Khrizma, who is thirty-four years old, has numerous disabilities. She has an IQ of thirty-six and functions at the level of two-and-a-half-year-old. Khrizma is essentially nonverbal, cannot bathe or groom herself, and uses a wheelchair outside the home. In 2005, Renee and Gary purchased a home in McNary Estates, the housing development overseen by the HOA. At that time, Khriz-ma lived in the home part-time. In 2010, Khrizma began living with her parents full-time.
Khrizma is unable to use a toilet without assistance and suffers from severe bladder and bowel incontinence. The incontinence increased in severity in 2014. In early 2015, after consultation with Khrizma’s doctors, Renee and Gary decided to purchase a small motor home equipped with a toilet and shower. The motor home would ensure Khrizma always was close to a toilet and would permit her parents to use the shower to clean her up in the case of accidents while away from home.
Residents of McNary Estates are subject to a set of covenants, conditions, and restrictions (“OCRs”). One of the OCRs prohibits McNary Estates residents from parking large vehicles, including motor homes, in front of their houses. Renee and Gary wanted to purchase a Class C RV, which would not fit in their garage. On April 6, 2015, they submitted an accommodation request to the HOA through Girod. The request was accompanied by letters from two of Khrizma’s healthcare providers. Those letters documented Khrizma’s bowel and mobility issues and explained why she needed to be in close proximity to a toilet even on short outings. In the request, Renee and Gary explained that Khrizma needed a vehicle in which she could lie down due to scoliosis. The request includes medical records documenting Khrizma’s scoliosis.
At the HOA’s May board meeting, the accommodation request was discussed and then tabled to permit the HOA’s attorney, Kevin Harker, to discuss the situation with plaintiffs. Harker contacted plaintiffs and suggested two alternatives to plaintiffs’ request: parking the motor home at an off-
At the HOA’s June board meeting, Harker advised the board that the HOA had no legal obligation to grant plaintiffs’ request. The board voted to send the issue to mediation. But plaintiffs rejected that invitation. In an email, Renee wrote that
Khrizma’s bowels are NOT up for discussion in mediation. Mediation is for barking dogs and fence line issues. Our reasonable request for a medical variance to park a daily use, medical transport RV on our driveway is federally protected, as is the timeliness of your response, which has been severely delayed.
Harker Decl. Ex. 3.
The HOA responded in a June 10, 2015 letter. That letter states that the HOA was under no legal obligation to grant the accommodation because the accommodation “relates to transportation, not her ability to use or enjoy the home itself.” Gary Kuhn Decl. Ex. 7 at 4. Harker also cited safety concerns, characterizing the risk that the RV would protrude onto the street and beyond plaintiffs’ property line as “one of the primary reasons” the board asked to mediate. Id.
At plaintiffs’ request, the Fair Housing Council of Oregon, a nonprofit, sent a letter to the HOA on June 23, 2015. That letter explained why the requested accommodation was reasonable and must be granted. It also included photos of an RV the same length as the one plaintiffs planned to purchase temporarily parked in plaintiffs’ driveway. The photos show that the vehicle’s wheels and the bottom of the chassis do not protrude beyond the property line.
On June 30, 2015, the HOA responded with another letter. In the letter, Hacker stated the Board had determined it “does not have the legal authority to grant the request.” Gary Kuhn Deck Ex. 9 at 2. The letter goes on to stay that “[tjhere is no disagreement that the Kuhn’s daughter has a disability or that she qualifies for reasonable accommodation under the Fair Housing Act. Our point of disagreement is whether the storage of an RV is a reasonable accommodation required for Khrizma to use or enjoy the dwelling.” Id. The letter also reiterated the HOA’s safety concerns, noting that because the RV was nearly as long as the driveway, it would extend past the property line when parked unless there was virtually no gap between
Renee and Gary purchased the RV and began parking it in their driveway. In a July 16, 2015 letter to the Fair Housing Council, Hacker raised stated that the vehicle was blocking visual sight for other drivers. In response to that concern, Renee emailed plaintiffs’ next-door neighbor, Linda Strunk. Because the Kuhns’ house was on a short, dead-end street, Strunk was the only homeowner whose view from her driveway would be obstructed by the RV. Renee explained to Strunk that they had ordered and would pay to install a parabolic mirror to address visibility issues entering and exiting the Strunks’ driveway. Renee also indicated interest in discussing other solutions to the visibility problem. Strunk declined to accept the mirror, writing in an email to Renee that, “I have left your parabolic mirror on our porch. Please pick it up today as we do not wish to use it,” Renee Kuhn Decl, Ex. 3 Sept. 13, 2016. In a declaration accompanying defendants’ cross-motion for summary judgment, Strunk described a “near accident with another vehicle due to the inability to see traffic approaching” when the RV was parked in plaintiffs’ driveway. Strunk Deck ¶ 3.
On August 6, 2015, the HOA formally denied plaintiffs’ accommodation request. The board minutes explain that in order to have a right to an accommodation, the person requesting the accommodation must have a disability, the request must be reasonable, and the request must be necessary for the use and enjoyment of the home. The minutes state that the first two criteria were met, but the third was not. The HOA notified plaintiffs of their decision on August 7, 2015. Plaintiffs sold their home and moved in September 2015. In a declaration accompanying plaintiffs’ motion for summary judgment, Gary stated that he and Renee knew moving would be disruptive for Khrizma. Nonetheless, they decided to leave based on the four-month delay in rendering a decision, “growing hostility from our neighbors that was fostered by Ms. Girod,” and the threat of litigation to enforce the OCRs. Gary Kuhn Deck ¶ 8.
Plaintiffs moved for partial summary judgment regarding liability on their claims that defendants discriminated against them in the provision of housing services by failing to make a reasonable accommodation, in violation of 42 U.S.C. §§ 3604(f)(2) & (f)(3)(B) and Or. Rev. Stat. §§ 659.145(2)(c) & (2)(g). Defendants cross-moved for summary judgment on the same claims.
STANDARD
Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), The moving party has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex Corp. v. Catrett,
DISCUSSION
The FHAA prohibits discrimination against any person “in the provision of services or facilities in connection with [a] dwelling” on the basis of disability. 42 U.S.C. § 3604(f)(2). The Act defines “dis
To establish a claim of discrimination on a theory of failure to reasonably accommodate, “a plaintiff must demonstrate that (1) he suffers from a handicap as defined by the FHAA (2) defendants knew or reasonably should have known of the plaintiffs handicap; (3) accommodation of the handicap may be necessary to afford plaintiff an equal opportunity to use and enjoy the dwelling; and (4) defendants refused to make such accommodation.” Giebeler v. M & B Assocs.,
I. Necessity of Accommodation
The first dispute is over whether an exception to the rule prohibiting parking an RV in front of the house is an accommodation that “may be necessary to afford [Khrizma] an equal opportunity to use and enjoy the dwelling.” Id. at 1146. To prove necessity, plaintiffs must show that “but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice.” Id. at 1155; see also Dadian v. Vill. of Wilmette,
When the request for the accommodation was before the HOA board, defendants took the position, that the accommodation failed to meet the necessity requirement because it was related to use and enjoyment of transportation, not housing; Defendants do not take that position now, likely because it is well-established that when a “handicapped person faces injury or pain by having to travel long distances from the house to
Declarations submitted by Khrizma’s medical providers amply demonstrate a nexus between Khrizma’s disability and the need for an accommodation permitting the RV to be parked in fi-ont of the house.
[I]t is my medical opinion that, due to her medical condition, Ms. Kuhn requires a transport vehicle that allows her to be in close proximity to a toilet at all times. Additionally, the potential for accidents necessitates access to a shower. For these reasons, I believe that a motor home that is fully equipped with a separate toilet and shower is medically necessary to allow Ms. Kuhn to travel and have access to her community and medical providers. Given the l-isk of accidents and Ms. Kuhn’s limited mobility, I believe that it is necessary that Ms. Kuhn’s caregivers are able to park this vehicle at Ms. Kuhn’s residence.
Bourgeois Decl. ¶3. Evelin R. Dacker, M.D., opined that a motor home equipped with a separate toilet and shower was necessary for the same reasons cited by Dr. Bourgeois. Dr. Dacker also explained that Khrizma “requires sufficient room to lay down in the vehicle” due to her scoliosis. Dacker Decl. ¶ 4.
In their motion for summary judgment, defendants focus their arguments on alternatives to the requested accommodation. They contend, as Hai-ker did in his letters to plaintiffs, that the RV could be parked offsite or that a medical toilet could be installed in the back of a van. In addition, defendants raise for the first time in their summary judgment motion two new altei--natives: that defendants could have expanded their garage to accommodate the RV, and that defendants could have purchased a smaller Class B RV. Defendants argue that the availability of these options rendei-s the requested accommodation unnecessary.
To the extent that defendants argue Khrizma’s needs could have been met with no change to the OCRs, plaintiffs pi-ovided a commonsense i-eason to reject defendants’ proposed alternatives. A van equipped with a medical toilet would not provide easy access to the toilet, has no shower, and has insufficient room for Khrizma to lie down. Parking offsite would leave Renee and Khrizma would no transportation option when Gary is at work, and would risk accidents even when a car is available. Those reasons, which defendants have offex-ed no evidence to contradict, more than satisfy any burden plaintiffs have to explain their rejection of defendants’ non-accommodation alternatives. Cf. Sabal Palm Condominiums of Pine Island Ridge Ass’n, Inc. v. Fischer, 2014
The new proposed alternatives would themselves require accommodations: a Class B RY also would have to be parked in front of the house,
There may be instances where a provider believes that, while the accommodation requested by the individual is reasonable, there is an alternative accommodation that would be equally effective in meeting the individual’s disability-related needs. In such a circumstance, the provider should discuss with the individual if she is willing to accept the alterative accommodation. However, providers should be aware that persons with disabilities typically have the most accurate knowledge about the functional limitations posed by their disability, and an individual is not obligated to accept an alternative accommodation suggested by the provider if she believes it will not meet her needs and her preferred accommodation is reasonable.
Joint Statement of the Department of Housing and Urban Development and the Department of Justice on Reasonable Accommodation (May 17, 2004) (“Joint Guidance”), in 1 Housing Discrim. Pr. Man. App’x 2C. The Joint Guidance, though not binding on this Court, is entitled to persuasive weight. See United States v. Mead Corp.,
Considering the plain text of the statute, the Joint Guidance, and the principles of fairness and waiver described above, I conclude defendants’ identification of plausible alternative accommodations is irrelevant to evaluating whether plaintiffs’ requested accommodation was necessary within the meaning of the statute.
In arguing that plaintiffs’ requested accommodation was not necessary, defendants rely extensively on Cimarron Foothills Cmty. Ass’n v. Kippen,
I do not find the reasoning in Cimarron persuasive for a number of reasons, but there is no need to explain why in this case. Cimarron is distinguishable for the basic reason that the homeowners’ association in that case did not raise their argument about building a garage, for the first time in a summary judgment, motion. To the extent plaintiffs here had .any obligation to consider defendants’ proposed alternatives, they were bound to consider only those alternatives suggested in the interactive process; they cannot be expected to have anticipated every post hoc rationalization defendants could generate to justify their denial of the accommodation.
Whether an accommodation is necessary is. a question of fact. But here, there is no question of material fact that the van and offsite parking would not meet Khrizma’s needs. With respect to the two alternative accommodations raised for the first time in the summary judgment motion, it is not plaintiffs’ burden to show that they chose the best or least burdensome.accommodation.
It is clear from the record that plaintiffs were .not much interested in discussing defendants’ proposed alternatives. But the FHAA does not require individuals requesting accommodation to be reasonable in discussing alternatives; it requires them to prove the requested accommodation may be necessary to permit use and enjoyment of the home. Plaintiffs met that requirement by introducing medical evidence connecting Khrizma’s disability to the use of a Class C RV that can be parked in close proximity to her home. Viewing the summary judgment record as a whole, I find no question of material fact remains regarding the necessity of plaintiffs’ requested accommodation. Plaintiffs are entitled to summary judgment on the issue of necessity.
II. Reasonableness of Accommodation
Even though the requested accommodation was necessary, defendants were only obligated to provide it if it was also reasonable. “Ordinarily, an accommodation is reasonable under the FHAA
Plaintiffs met their initial burden to show that the requested accommodation was reasonable on its face. They responded to defendants’ safety concerns by doeu-menting the length of the RV and then-driveway and showing through photo evidence that the RV could be parked in the driveway without extending beyond the property line. They also specifically addressed concerns about visual sight lines by purchasing and offering to install a parabolic mirror. Finally, plaintiffs submitted uncontradicted evidence that then-house was on a short, dead-end street with little traffic. The burden therefore shifts to defendants to show that the requested accommodation was not reasonable under the circumstances.
Defendants introduced a single piece of evidence that parking the RV in front of plaintiffs’ home blocked sight lines and posed a safety threat: the declaration of plaintiffs’ neighbor that she was in a near accident because the RV made her unable to see. That evidence likely would have been sufficient to get defendants to trial on the issue of reasonableness were it not for the evidence about the parabolic mirror. However, it appears a parabolic mirror would mitigate or eliminate the only documented safety risk in the record—the risk when the Strunks exit their driveway. It is defendants’ burden to rebut that evidence, and they have not done so. Defendants offer no evidence regarding the severity of the risk posed or the probability that accidents will occur. The only direct, objective evidence of danger is Strunk’s declaration, and she does not explain why she rejected
CONCLUSION
Plaintiffs’ Motion for Partial Summary Judgment (doc. 22) is GRANTED. Defendants’ Cross-Motion for Summary Judgment (doc. 30) is DENIED. The parties’ requests for oral argument are denied as unnecessary. Judgment is entered in favor of plaintiffs regarding liability on the federal- and state-law claims that defendants discriminated against plaintiffs by refusing to make a reasonable accommodation in the provision of services in connection with housing.
IT IS SO ORDERED.
Notes
. Plaintiffs initially sued two other defendants: Richard LeDoux and The Fountains at MacNary, McNary Estates, Phase 8 Homeowners Association, Inc. The claims against those defendants were settled and dismissed.
. Defendants contend that because the driveway is at an angle, the top portion of the chassis may breach the property line. Whether that is true is not material to this Court’s analysis.
. The Giebeler court left "up in the air” whether this precise wording correctly states the allocation of the burden in cases under the FHAA. See Giebeler,
. Defendants’ motion to strike from the summary judgment record the letters that accompanied plaintiffs’ request for accommodation is denied. Those letters, like the other materials accompanying the request, are admissible not to prove the truth of the matter asserted but to show what evidence the HOA had before it to connect Khrizma's disability to the requested accommodation. The declarations quoted in this opinion, to which defendants have mounted no evidentiary challenge, were submitted in support of plaintiffs' reply in support of their motion for summary judgment.
. Although the CCRs would prohibit parking a Class B RV in front of the house, it is not clear from the summary judgment record whether á Class B RV would fit in the garage. If a Class B RV would fit in the garage, it is a ''non-accommodation” alternative like the van and offsite parking alternatives. Plaintiffs have explained that a Class B RV, with its small combined toilet and shower, would not meet Khrizma’s needs. That explanation is supported by the medial evidence.
. Plaintiffs argue that defendants conceded the requested accommodation was reasonable, citing the meeting minutes from the August 6, 2015 HOA board meeting. Those minutes state that "the first two criteria are met,” referring to the requirement that an individual requesting an accommodation demonstrate that she has a disability and that the requested accommodation is reasonable. Gary Kuhn Decl. Ex. 13. That statement does not foreclose defendants from contesting reasonableness now for two reasons. First, plaintiffs have cited no precedent for treating meeting minutes as a binding judicial admission. Second, the record suggests that the meeting notes may reflect a layperson's misunderstanding of legal advice. A June 30, 2015 letter from the HOA’s attorney states that "[t]here is no disagreement that the Kuhn’s daughter has a disability or that she qualifies for reasonable accommodations under the Fair Housing Act.” Gary Kuhn Decl. Ex. 9 at 2. In making the "first two criteria” statement, the HOA board may have conflated whether Khrizma is entitled to reasonable accommodations with whether the requested accommodation was reasonable.