Trovato, et a l . v . Manchester CV-96-071-M 09/30/97 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Sylvia Trovato and Sharleen Durost, Plaintiffs, v. Civil N o . 96-71-M

City of Manchester, New Hampshire, Defendant.

O R D E R O N S U M M A R Y J U D G M E N T A N D P E R M A N E N T I N J U N C T I O N

Plaintiffs Sylvia Trovato and her daughter, Sharleen Durost, bring this action for injunctive and declaratory relief against Defendant City of Manchester, New Hampshire. Plaintiffs filed their complaint after the city refused to grant them permission to build a paved parking space in the front of their home. Both plaintiffs suffer from muscular dystrophy and claim that the city’s refusal violated their rights under Title II of the Americans with Disabilities Act (“ADA”),

- 12134 (West 1995); Section 504 of the Rehabilitation Act,

(West Supp. 1997); and the Fair Housing Amendments Act of 1988 (“FHAA”),

(f)(West 1994).

Before the court are cross motions for summary judgment. For the reasons set out below, defendant’s motion is denied and plaintiffs’ motion is granted. FACTS Mrs. Trovato walks with difficulty but can get along for short distances using a walker. She sometimes requires a wheelchair. Sharleen wears a brace, has difficulty walking, and relies on her stepfather for help to go from the street up the walk and into the house. Mrs. Trovato can still drive a car. Because her gait is seriously impaired by the disease, Mrs. Trovato tends to walk very cautiously and without raising her feet too far off the ground — reminiscent of a slow shuffle. She walks at her peril over surfaces that are not smooth, not cleared, or that are inclined. She also cannot walk very far and has difficulties climbing stairs that are not built with a low rise.

The defendant City of Manchester does not dispute that both women suffer from muscular dystrophy, nor can it reasonably dispute that both walk tentatively and with extreme difficulty.

Plaintiffs want to put a relatively short paved parking space in front of their house, near the front steps, in order to facilitate their ability to leave and enter their house and get into their car. They prefer to use the front entrance of their home because the steps leading to the back door are significantly more steep. For some time the Trovatos have been pulling their car up onto the front lawn to park but with winter weather (and

2 rain and New Hampshire’s mud season) the ground becomes rutted, iced, snow covered, and impassable for plaintiffs. Toward that end, M r . Trovato applied for a building permit to construct the paved space. The permit was denied because the zoning ordinance’s setback requirements could not be met. Mr. Trovato was directed by the Building Commissioner to the Zoning Board of Adjustment (“ZBA”) where he pursued an appeal. The ZBA gave notice of a public hearing on M r . Trovato’s appeal, simply noting that the appeal related to the following matter: “TO: create a paved parking space in street yard, where not allowed, as per plan submitted 6/5/95, at 36 Rand St.” The ZBA also notified all abutters of the hearing, none of whom actually appeared to oppose, or otherwise opposed the request. Review of the transcript of the ZBA hearing filed by defendant reveals that the ZBA members construed the appeal as a request for a zoning variance, which the ZBA denied. The ZBA also seems to have considered in passing the possibility of granting a special exception, which might have permitted a “circular driveway,” but abandoned the idea either because the matter before the ZBA was considered to be a variance application or because the lot size and building location did not qualify, or both. The Board expressed genuine sympathy for the plaintiffs’ situation, but felt legally constrained to deny the appeal.

3 Understandably disappointed, M r . Trovato sought and obtained legal help from the Disabilities Rights Center, Inc. On July 2 7 , 1995, Lynne Zygmont, Esq., wrote to the ZBA on behalf of the Trovatos to request a rehearing, for the purpose of presenting evidence and argument related to plaintiffs’ entitlement under federal law to a reasonable accommodation under the zoning ordinance sufficient to permit them to pave the parking area next to their front steps. Defendant city considered the request on August 1 4 , 1995, and a review of the transcript of that meeting, filed by defendant, shows that the ZBA denied the request without any consideration of the city’s responsibility under applicable federal law to insure that disabled persons are not subjected to discrimination. The ZBA did not consider the need for a hearing in order t o , nor did the ZBA on its own, balance the interests of and benefits to these disabled individuals against the interest of and burden to the municipality in making accommodations under the zoning ordinance based on the facts of this particular case. Rather, the ZBA seems to have denied the request for rehearing because it erroneously concluded that state law applicable to variances precluded its granting any form of relief. One Board member, Signe A . McQuaid, noted that applications like

plaintiffs’ should be handled by a permit system which would in effect allow a reasonable accommodation in the form of an

4 exception under the otherwise applicable zoning ordinance, but

only so long as the accommodation was needed. But the ZBA seems

to have concluded that, absent municipal legislation, it was not

authorized to extend such a permit, and could not grant a

variance under state law, so denied the rehearing.

DISCUSSION I. Standard of Review

Summary judgment is proper "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c). A material

fact "is one ‘that might affect the outcome of the suit under the

governing law.’" United States v . One Parcel of Real Property

with Bldgs.,

0 0 , 204 (1st Cir. 1992) (quoting Anderson

v . Liberty Lobby, Inc.,

4 2 , 248 (1986)). The moving party has the burden of demonstrating the absence of a genuine

issue of material fact for trial. Anderson, 477 U.S. at 256.

The party opposing the motion must set forth specific facts

showing that there remains a genuine issue for trial,

demonstrating "some factual disagreement sufficient to deflect

brevis disposition." Mesnick v . General Electric Co.,

(1st Cir. 1991), cert. denied,

(1992).

That burden is discharged only if the cited disagreement relates

to a genuine issue of material fact. Wynne v . Tufts University

School of Medicine,

9 1 , 794 (1st Cir. 1992), cert.

denied,

(1993).

II. The FHAA Claim

Plaintiffs base their FHAA claim on the city’s refusal to exempt them from a zoning ordinance requiring that front yard parking spaces in certain residential areas be not less than four feet from the principal building. Manchester Zoning Ordinance § 7.03(6)(a)(ii). Plaintiffs contend that by denying their request for permission to build an accessible parking space in the front of their home, the city discriminated against them on the basis of their disability.

The Fair Housing Amendments Act of 1988 makes it unlawful to discriminate against “any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling” on the basis of that person’s handicap.

(f)(2). Discrimination is defined to include refusing to make reasonable accommodations in “rules, policies, practices, or services” when necessary to afford a person with a handicap “equal opportunity

6 to use and enjoy a dwelling”.

(f)(3)(B). A

FHAA claim premised on a theory of failure to make reasonable

accommodation does not require a showing of discriminatory

intent. See, e.g. Smith & Lee Assocs. v . City of Taylor,

8 1 , 794-96 (6th Cir. 1996).

The court finds, as the parties agree, that plaintiffs are

indeed “handicapped” within the meaning of the FHAA,

(h), and that plaintiffs’ muscular dystrophy substantially

limits their ability to walk. Although, literally, plaintiffs

were not discriminated against regarding the sale or rental of

housing, parking is clearly a “service or facility in connection

with” their property affecting their use and enjoyment thereof

and is covered by the Act. See, e.g. Shapiro v . Cadman Towers,

Inc.,

2 8 , 333-335 (2nd Cir. 1995). 1

Under the FHAA, an accommodation is “necessary” to afford

“equal opportunity” when plaintiffs have shown that but for the

accommodation, they “will be denied an equal opportunity to enjoy

the housing of their choice.” Smith & Lee Assocs., 102 F.3d at

1 In addition, the FHAA also makes it unlawful to “otherwise make available or deny” a dwelling to any buyer or renter because of handicap,

(f)(1). This phrase “encompasses a wide array of housing practices” and indicates that the FHAA proscribes acts by persons “who are neither sellers nor lessors of property.” Casa Marie, Inc. v . Superior Court of Puerto Rico,

5 2 , 257 n.6 (1st Cir. 1993).

7 795. Here, plaintiffs have demonstrated that, given their

disabilities, they would derive great benefit from a parking

space in their front yard and the lack thereof has adversely

affected their “use or enjoyment” of their home. See, e.g.

Shapiro,

(recognizing that availability of

convenient parking space affected disabled cooperative apartment

owner’s “use and enjoyment” of dwelling within the meaning of the

FHAA).

Given that the plaintiffs are entitled to an accommodation

by the city, the next question is whether the city fulfilled its

duty to provide an accommodation that was reasonable. An

accommodation is reasonable unless it requires “a fundamental

alteration in the nature of a program or imposes undue financial

and administrative burdens [on the defendant].” Smith & Lee

Assocs., 102 F.3d at 295 (quotations omitted). The FHAA’s goal

of assisting persons with disabilities should be weighed against

the costs or burdens of compliance imposed on the local governing

body.

The reasonable accommodation requirement of the FHAA clearly

can apply to zoning ordinances. See Casa Marie, Inc. v . Superior

Court of Puerto Rico,

5 2 , 257 n.6 (1st Cir. 1993).

“Courts interpreting the reasonable accommodation provision of

the [FHAA] have ruled that municipalities . . . must change,

8 waive, or make exceptions in their zoning rules to afford people

with disabilities the same opportunity to housing as those who

are without disabilities.” Hovsons, Inc. v . Township of Brick,

(3rd Cir. 1996)(quotations omitted)(requiring

that township grant variance in order to accommodate needs of

elderly disabled who hoped to live in nursing home in residential

zone). See also Smith & Lee Assocs., 102 F.3d at 796 (holding

under similar facts that city had to accommodate disabled

residents, despite restrictions imposed by neutral zoning code);

Moyer v . Lower Oxford Township,

, at *2 (E.D.Pa. January 6, 1993). 2

The plaintiffs here made a reasonable request. They simply

wanted permission to build a small parking space near their front

entrance. They also gave the city ample opportunity to

accommodate them before seeking relief in a judicial forum, c f .

Oxford House-A v . City of University City,

, 1024-25

2 The court disagrees with defendant that § 3603(b) of the FHAA, which exempts single family homes, applies to the instant situation. Given the broad remedial objectives of the FHAA, statutory exemptions should be construed narrowly. See City of Edmonds v . Oxford House, Inc.,

(1995); Hogar Agua y Vida en el Desierto, Inc. v . Suarez-Medina,

7 7 , 181 (1st Cir. 1994). The clause quite clearly was intended to protect owners of single family homes from being subject to the requirements of the FHAA, and not, as defendant argues, to protect local governments whose ordinances are applied in a manner that discriminates against persons with disabilities.

9 (8th Cir. 1996)(cautioning that plaintiffs must give a local

governing body the chance to accommodate them by adjusting the

zoning code before challenging a zoning decision in court). In

contrast, the city has responded unreasonably, albeit without

malice or bad faith. It has not shown that the requested parking

space would have disrupted the character of plaintiffs’

neighborhood (certainly no neighbors objected) or that the city

would have suffered any financial or other administrative burden

if plaintiffs were accommodated. Nor has the city suggested any

reasonable alternative accommodation (plaintiffs would gladly

have accepted ZBA member McQuaid’s reasonable suggestion relative

to an “as needed” permit).

The city’s attorney argued that the city gave the plaintiffs

valid options short of a variance, such as suggesting that the

plaintiffs park their car in their side or rear yard and then

install either a ramp or elevator (at comparatively great

expense). Defendant concedes, however, that a front-yard parking

space would shorten the distance the plaintiffs would have to

walk. A front-yard parking space also undoubtedly would be the

most simple and least expensive option for the plaintiffs.

Accordingly, it is plain that, as a matter of law, the city

failed to reasonably accommodate the plaintiffs as required by

the FHAA. C f . Jankowski Lee & Assocs. v . Cisneros,

9 1 ,

10 891-96 (7th Cir. 1996)(affirming HUD’s determination that under

FHAA private apartment complex had to reasonably accommodate

disabled tenant by providing parking space as close as possible to main building). 3

III. The ADA and Rehabilitation Act Claims The analysis under the ADA and the Rehabilitation Act is very similar to that under the FHAA. Title II of the ADA prohibits a public entity from discriminating against an individual on the basis of disability or from excluding such an individual from public services, programs, or activities.

Section 504 of the Rehabilitation Act

3 Courts are divided about whether the plaintiff or the defendant bears the burden on the reasonable accommodation issue. Compare Hovsons, Inc.,

(holding that under FHAA defendant must prove that the plaintiff’s proposed accommodation is unreasonable) with Elderhaven, Inc. v . City of Lubbock,

, 178 (5th Cir. 1996)(plaintiff bears burden of proof under FHAA and Rehabilitation A c t ) . Even assuming that plaintiffs bear the burden of showing that defendant has not provided a reasonable accommodation, the plaintiffs have satisfied their obligation. 4 This provision specifically provides:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

.

11 prohibits the same type of discrimination by a recipient of

federal funds.

. The defendant city is both a

public entity and a recipient of federal funds and is therefore

regulated by both statutes. In addition, the parties agree that

plaintiffs are “disabled” and “handicapped” as the terms are

defined in the ADA,

, and in the Rehabilitation

Act,

(a), respectively.

The plaintiffs maintain that zoning qualifies as an

“activity” of a public entity within the meaning of the ADA and

that they were denied the benefits of this activity when the city

failed to accommodate their request for a variance. Although

“activity” is not explicitly defined in Title II of the ADA, it

has been held to include zoning decisions by a city “because

making such decisions is a normal function of a governmental

entity.” See Innovative Health Sys. v . City of White Plains,

7 , 44 (2nd Cir. 1997). But see Robinson v . City of

Friendswood,

(S.D.Tex. 1995).

The conclusion that Title II of the ADA applies to zoning

decisions is also supported by the implementing regulations

issued by the Department of Justice and its Technical Assistance

Manual. Under the regulations, a city must reasonably modify its

policies when “necessary to avoid discrimination on the basis of

disability,” unless it can show that the modifications “would

12 fundamentally alter the nature of the service, program or

activity.”

(b)(7)(1997). The Justice

Department provides an example that bears remarkable similarity

to the situation presented in this case: ILLUSTRATION 1 : A municipal zoning ordinance requires a set-back of 12 feet from the curb in the central business district. In order to install a ramp to the front entrance of a pharmacy, the owner must encroach on the set-back by three feet. Granting a variance in the zoning requirement may be a reasonable modification of town policy.

The Americans with Disabilities Act: Title II Technical

Assistance Manual § II-3.6100.

Again, for the reasons given above under the FHAA section,

defendant not only failed to reasonably accommodate plaintiffs’

disability, but it has also failed to show how granting

plaintiffs an exception would fundamentally alter or subvert the

purposes of its zoning ordinance. Plaintiffs are therefore

entitled to summary judgment on their claims under the ADA and

Rehabilitation Act.

The court has reviewed defendant’s remaining points, but

finds them to be unpersuasive. Contrary to defendant’s argument,

the ADA and Rehabilitation Act claims are not governed by a 30-

day limitations period, but by the three year limitations period

set forth in New Hampshire’s personal injury statute. See Doukas

v . Metropolitan Life Ins. Co.,

, 1199-1201

13 (D.N.H. 1995). In addition, given that both plaintiffs were

injured by the city’s conduct and their injury is redressable by

the injunction they seek, they both have standing. See Valley

Forge Christian College v . Americans United for Separation of

Church & State,

6 4 , 472 (1982); Innovative Heath Sys.,

(holding that standing provisions of Rehabilitation

Act and Title II of the ADA extend as broadly as permitted by

Art. III of the Constitution).

CONCLUSION

For the foregoing reasons, the court denies defendant’s

motion for summary judgment and grants plaintiffs’ motion for

summary judgment. The defendant is enjoined from enforcing its

zoning code in a manner that in any way restricts or impedes the

plaintiffs’ ability to pave and maintain a parking space in their

front yard. This injunction shall terminate if and when the

plaintiffs move from their present residence.

14 SO ORDERED.

Steven J. McAuliffe United States District Judge

September 3 0 , 1997

cc: Lynne J. Zygmont, Esq. Thomas I . Arnold, I I I , Esq.

15