Kuhn et al v. McNary Estates Homeowners Association, Inc. et al

Filing 44

ORDER: Granting Motion for Partial Summary Judgment 22 Denying Defendants Cross-Motion for Summary Judgment 30 ). The patties' requests for oral argument are denied as unnecessary. Judgment is entered in favor of plaintiffs regardin g 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. See, formal Opinion. Signed on 1/11/2017 by Judge Ann L. Aiken. (rdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

KHRIZMA KUHN, by and through her
guardians Gary and Renee Kuhn, GARY
KUHN, and RENEE KUHN,

Case No. 6:16-cv-00042-AA
OPINION AND ORDER

Plaintiffs,

v.
MCNARY ESTATES HOMEOWNERS
ASSOCIATION, INC., and TERESA
GIROD,
Defendants.

AIKEN, Judge:
Defendant McNary Estates Homeowners Association, Inc., ("HOA") denied plaintiffs
Khrizma, Renee, and Ga1y Kuhn's request for an exception to the HOA's restrictive covenant

Page 1 - OPINION AND ORDER

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, 1 asserting violations of the federal Fair Housing Amendments Act ("FHAA'') and the Oregon
Fair Housing Act, as well as a claim for negligence. Before the Court now are the parties' crossmotions for partial summaty judgment. For the reasons set forth below, plaintiffs' motion is granted
and defendants' motion is denied.

BACKGROUND
The facts in this case are largely undisputed. Renee and Gaty Kuhn are the parents of
Khrizma Kuhn. Khrizma, who is thirty-four years old, has numerous disabilities. She has an IQ of
thitty-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 McNaty Estates, the housing development overseen by the HOA. At that time,
Khrizma lived in the home patt-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 Gaty decided to purchase a small motor home
equipped with a toilet and shower. The motor home would ensure Khrizma always was close to a

1

Plaintiffs initially sued two other defendants: Richard LeDoux and The Fountains at
MacNary, McNaty Estates, Phase 8 Homeowners Association, Inc. The claims against those
defendants were settled and dismissed.
Page 2 - OPINION AND ORDER

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
("CCRs"). One of the CCRs prohibits McNaty 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 shoti 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 offsite facility or installing a chemical toilet in the back of a smaller van. Gary and Renee
explained that neither alternative would meet Khrizma's needs. Because Gary uses the family car
to go to work, parking the RV offsite would leave Renee with no way to get Khrizma to the motor
home dming work hours. Even when Gaty was not at work, Khrizma would be at risk of having an
accident in the car on the way to the RV. The van would be inferior to the RV for three reasons.
Access to the toilet would be more difficult, as Khrizma would have to exit the vehicle and enter
through the back of the van. The van would not have a shower to clean up in the event of accidents.

Page 3 - OPINION AND ORDER

And the van did not have sufficient space for Khrizma to lay down, as required to accommodate her
scoliosis.
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 Deel. 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." Gaty Kuhn Deel. 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 primaty 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.2 Gaty Kuhn Deel. Ex. 8 at 42-45.
The photos and an email from an RV sales representative also show that the driveway measures 25
feet, 8.5 inches, while the RV is 24 feet, 10 inches long. Gary Kuhn Deel. Ex. 8 at 40-41. The Fair

2

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.
Page 4 - OPINION AND ORDER

Housing Council stated that if the HOA did not grant the accommodation, plaintiffs might be left
with no choice but to sell their house, move, and perhaps sue for damages.
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." Gaty Kuhn Deel.
Ex. 9 at 2. The letter goes on to stay that "[!]here 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 vittually no gap between the garage door and the front end of the RV.
Renee and Gary purchased the RV and began parking it in their driveway. Ina 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 shmt, 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 Deel. Ex. 3 Sept. 13, 2016. In a declaration accompanying defendants' cross-motion for
summaty 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 Deel.~ 3.

Page 5 - OPINION AND ORDER

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 summaty judgment, Gaty 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 CCRs. Gary Kuhn Deel.

~

8.

Plaintiffs moved for patiial summaty 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
Summaty judgment is appropriate if"there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter oflaw." 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, 477 U.S. 317, 323 (1986). If the moving party shows the absence ofa genuine issue of
material fact, the nonmoving party must go beyond the pleadings and identify facts which show a
genuine issue for trial. Id. at 324. "Summaty judgment is inappropriate ifreasonable jurors, drawing

Page 6 - OPINION AND ORDER

all inferences in favor of the nonrnoving party, could return a verdict in the nonrnoving patty's
favor." Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1207 (9th Cir. 2008).
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 "discrimination" to include "a refusal to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be necessary to afford [the person
with a disability] equal oppottunity to use and enjoy a dwelling." Id. § 3604(f)(3)(B); Budnuck v.
Town of Carefree, 518 F.3d 1109, 1119 (9th Cir. 2008). Oregon's fair housing law mirrors the
federal law and the two statutes are interpreted identically. Fishing Rock Owners' Ass 'n v. Roberts,
6 F. Supp. 3d 1132, 1138 n.1 (D. Or. 2014).
To establish a claim of discrimination on a theoty of failure to reasonably accommodate, "a
plaintiff must demonstrate that (I) 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 necessa1y to afford plaintiff att equal opportunity to use and enjoy the
dwelling; and (4) defendants refused to make such accommodation." Giebeler v. M & B Assocs.,
343 F.3d 1143, 1147 (9th Cir. 2003) (citations and quotation marks omitted). It is undisputed that
Khrizma has a disability, that defendants knew about that disability, and that defendants denied the
request for accommodation. It is similarly undisputed that defendants are bound to comply with the
requirements of the FHAA. There are only two disputed questions with respect to the pending
motions. First, was plaintiffs' requested accommodation necessa1y to permit Khrizma to use and
eajoy of her home? And second, was plaintiffs' requested accommodation reasonable? Plaintiffs

Page 7 - OPINION AND ORDER

bear the burden to show that the accommodation was necessa1y and "seems reasonable on its face."
Id. at 1156. If plaintiffs make that showing, the burden shifts to defendants to show that the
accommodation would cause undue hardship in the particular circumstances. 3 Id.
I.

Necessity ofAccommodation
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 necessaty 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. Vil!. ofWilmette, 269 F.3d 831, 838 (7th Cir. 2001) (stating
that an accommodation is necessaiy under the FHAA if there is evidence that it "will affirmatively
enhance a disabled plaintiffs quality oflife by ameliorating the effects of his disability." (citation
and quotation marks omitted)).
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 injmy or pain by having to
travel long distances from the house to the car ... without a parking space close to the [home], the

3

The Giebeler court left "up in the air" whether this precise wording conectly states the
allocation of the burden in cases under the FHAA. See Giebeler, 343 F.3d at 1156 (9th Cir.
2003) (discussing differently-phrased tests from case law under the Rehabilitation Act and the
Americans with Disabilities Act, and declining to decide whether the two tests are the same or
slightly different). Giebler does, however, clearly establish that the plaintiff in a fair housing
case bears the initial burden to show both necessity and reasonableness, and that once that initial
burden is met, the burden shifts to the defendant to rebut plaintiffs' reasonableness evidence.
Any difference between the two tests is immaterial in this case.
Page 8 - OPINION AND ORDER

handicapped individual's use and enjoyment of the dwelling is diminished." United States v. Cal.

Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1381 (9th Cir. 1997). Here, ifKhrizmahadamedical
need to be transported in the RV, plaintiffs were effectively denied a parking space when defendants
denied their request for a parking variance. Any reasonable factfinder looking at the summary
judgment record would conclude that ifthe RV were parked offsite, Khrizma would face "injury or
pain" in accessing the mode of transp01iation deemed best for her by her parents and her doctors.
Declarations submitted by Khrizma' s medical providers amply demonstrate a nexus between
Klu'izma's disability and the need for an accommodation petmitting the RV to be parked in front of
the house. 4 Kaley Bourgeois, N.D., stated that
[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 risk of accidents and Ms. Kuhn's
limited mobility, I believe that it is necessaty that Ms. Kuhn's caregivers are able to
park this vehicle at Ms. Kuhn's residence.
Bourgeois Deel.~ 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 Deel.

~

4.

4

Defendants' motion to strike from the summaty 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 assetied
but to show what evidence the HOA had before it to connect Klu'izma's disability to the
requested accommodation. The declarations quoted in this opinion, to which defendants have
mounted no evidentiaty challenge, were submitted in support of plaintiffs' reply in support of
their motion for summaty judgment.
Page 9 - OPINION AND ORDER

In their motion for summmy judgment, defendants focus their arguments on alternatives to
the requested accommodation. They contend, as Harker 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 summaty judgment motion two new alternatives: 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 renders
the requested accommodation unnecessmy.
To the extent that defendants argue Khrizma's needs could have been met with no change
to the CCRs, plaintiffs provided a commonsense reason 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 Gaty is at work, and would risk accidents even when a car is
available. Those reasons, which defendants have offered no evidence to contradict, more than satisfy
any burden plaintiffs have to explain their rejection of defendants' non-accommodation alternatives.

Cf Sabal Palm Condominiums ofPine Island Ridge Ass 'n, Inc. v. Fischer, 2014 WL 988767, *15-

*16 (S.D. Fla. Mar.

13, 2004) (rejecting condominium's contention that it should be permitted to

limit the size of a disabled resident's service animal to twenty pounds in the face of"commonsense"
arguments, supported by evidence, that there would be disability-related benefits to a larger service
animal).

Page 10- OPINION AND ORDER

The new proposed alternatives would themselves require accommodations: a Class B RV
also would have to be parked in front of the house, 5 requiring a parking variance, and building an
addition to the garage would have entailed an application process to get permission from the HOA.
Defendants would have this Court hold that a requested accommodation is "necessary" under the
FHAA only if there is no other accommodation that would impose a lighter burden on the housing
provider. That is not the law. First, a plaintiff in an FHAA case need not prove that the requested
accommodation is the best or only way to solve a disability-related problem; the plain text of the
statute requires a housing provider to make any reasonable accommodation that "may be necessaty"
to permit use and enjoyment of the home. 42 U.S.C. § 3604(f)(3)(B) (emphasis added). Second, the
United States Depmiment of Housing and Urban Development and the United States Department
of Justice have addressed, and rejected, defendants' argument:
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 Depatiment of
Justice on Reasonable Accommodation (May 17, 2004) ("Joint Guidance"), in 1 Housing Discrim.

5

Although the CCRs would prohibit parking a Class B RV in front of the house, it is not
clear from the summaty judgment record whether a 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.
Page 11 - OPINION AND ORDER

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., 533 U.S. 218, 227 (2001) ("The well-reasoned views of
the agencies implementing a statute constitute a body of experience and informed judgment to which
courts and litigants may prope1ty resort for guidance." (citations, quotation marks, and alterations
omitted). As the U.S. District Court for the Southern District of Florida recently noted, it is a "basic
premise" of disability law that "while not eve1y accommodation chosen by a disabled person is
'reasonable,' a [housing provider] is not permitted to survey the universe of possible
accommodations or modifications and determine for the individual what, in its estimation, is the best
or most 'reasonable' approach." Alboniga v. Sch. Bd. ofBroward Cnty. Fla., 87 F. Supp. 3d 1319,
1339-40 (S.D. Fla. 2015). Third, as noted above, defendants raised the Class B RV and garage
modification options for the first time in their summary judgment motion, after denying plaintiffs'
request and after plaintiffs had sold their house and moved. Under basic principles of fairness and
waiver, they are not now permitted to avoid liability by faulting plaintiffs for failing to come up with
those alternative accommodations.
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
necessa1y within the meaning of the statute.
In arguing that plaintiffs' requested accommodation was not necessary, defendants rely
extensively on Cimarron Foothills CJnty. Ass 'n v. Kippen, 79 P.3d 1214 (Az. Ct. App. 2003). In that
case, the defendants operated an elder care facility out of their home. Id. at 1216. When the
homeowners' association sued them for violating the restrictive covenant prohibiting residents from

Page 12 - OPINION AND ORDER

parking RVs in front of their houses, the defendants argued they were entitled to a reasonable
accommodation exempting them from the requirement. Id. At trial, one of the defendants testified
that building a garage to enclose the RV would have been a financial burden and that a garage that
big would have been an "eyesore" that diminished that value of their property. Id. at 1218. The
court held the requested accommodation, which it characterized as a request for an exemption from
the rnle requiring RVs to be kept in enclosed garages, was not necessa1y within the meaning of the
Fair Housing Act. Id. at 1219.
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 summaiy 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 eve1y post hoc rationalization
defendants could generate to justify their denial of the accommodation.
Whether an accommodation is necessa1y 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 summaty 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 necessaty to permit use and enjoyment of the home. Plaintiffs met that requirement by

Page 13 - OPINION AND ORDER

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 ofmaterial fact remains regarding the necessity of plaintiffs' requested accommodation.
Plaintiffs are entitled to summaty judgment on the issue of necessity.
II.

Reasonableness ofAccommodation
Even though the requested accommodation was necessaty, defendants were only obligated

to provide it if it was also reasonable. "Ordinarily, an accommodation is reasonable under the FHAA
when it imposes no fundamental alteration in the nature of the program or undue financial or
administrative burdens." Giebeler, 343 F.3d at 1157 (citations and quotation marks omitted).
Defendants contend that there remains a question of material fact whether the requested
accommodation would make the street unsafe for other drivers. 6 They rely on a provision of the
statute that expressly states that "a dwelling [need not] be made available to an individual whose
tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy
would result in substantial physical damage to the property of others." 42 U.S.C. § 3604(f)(9). The
Joint Guidance states that a direct threat determination "must rely on an individualized assessment

6

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. Gaty Kuhn Deel. 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 oflegal 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."
Gaty Kuhn Deel. 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.
Page 14 - OPINION AND ORDER

that is based on reliable objective evidence" and must consider "(l) the nature, duration, and severity
of the risk of injury; (2) the probability that injury will actually occur; and (3) whether there are any
reasonable accommodations that will eliminate the direct threat." Joint Guidance. It goes on to say
that "[t]he housing provider must have reliable, objective evidence that a person with a disability
poses a direct threat before excluding him from housing on that basis." Id.
Plaintiffs met their initial burden to show that the requested accommodation was reasonable
on its face. They responded to defendants' safety concerns by documenting the length of the RV and
their 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 their 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 mi11·01" 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

Page 15 - OPINION AND ORDER

installation of a mirror designed to address the precise risk that led to her near-accident. Defendants'
argument that parabolic mirrors are themselves a safety concern due to sun glare is speculative and
unsupported by any evidence in the record. Because defendants have not introduced evidence
sufficient to create a question of material fact regarding reasonableness, plaintiffs are also entitled
to summary judgment on that issue.
CONCLUSION
Plaintiffs' Motion for Partial Summary Judgment (doc. 22) is GRANTED. Defendants'
Cross-Motion for Summaty Judgment (doc. 30) is DENIED. The patties' requests for oral argument
are denied as unnecessaty. 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.
Dated this

jJ_ of January 2017.
.f/J
Ann Aiken
United States District Judge

Page 16 - OPINION AND ORDER