Andover Housing Authority v. Shkolnik

• Decision Date: 02 November 2004
• Citation: 443 Mass. 300,820 NE 2d 815
• Parties: ANDOVER HOUSING AUTHORITY v. IZRAIL SHKOLNIK & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

443 Mass. 300

820 NE 2d 815

ANDOVER HOUSING AUTHORITY v. IZRAIL SHKOLNIK & another.¹

Supreme Judicial Court of Massachusetts, Essex.

November 2, 2004.

January 14, 2005.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

John S. Wessler for the defendants.

Martin J. Rooney for the plaintiff.

The following submitted briefs for amici curiae:

Steven S. Locke & Caitlin A. Sheehan for Massachusetts Commission Against Discrimination.

Susan Ann Silverstein & Michael R. Shuster for AARP.

Lowry E. Heussler for Avon Housing Authority & others.

SPINA, J.

In this summary process action, the Andover Housing Authority (authority), operator of the State-assisted Frye Circle public housing project for the elderly and disabled (Frye Circle), sought to evict Izrail Shkolnik and his wife, Ginda Barskaya (collectively, the tenants), from their apartment for excessive noise in violation of the terms of their lease. A judge in the Housing Court granted possession to the authority, and the tenants appealed. We granted the tenants' application for direct appellate review. The tenants claim that the authority discriminated against them in violation of the Federal Fair Housing Amendments Act (Fair Housing Act), 42 U.S.C. § 3604 (f)(3)(B) (2000); the Federal Rehabilitation Act (Rehabilitation Act), 29 U.S.C. § 794 (2000); and the Massachusetts antidiscrimination statute, G. L. c. 151B, § 4 (7), because the authority failed reasonably to accommodate Barskaya's health problems by withdrawing or delaying eviction proceedings. For the reasons that follow, we affirm the judgment below.²

The tenants, both in their early eighties, emigrated from Russia in 1993 and became occupants of a second-floor apartment at Frye Circle³ in September, 1994. The tenancy was uneventful until October, 1999, when the authority notified the tenants that it had received a complaint from one of their neighbors about the level of noise coming from their apartment on a regular basis. The noise consisted primarily of loud arguing, yelling, and excessive television or radio volume, often in the middle of the night. The authority reminded the tenants of their lease obligation to respect their neighbors' rights to "privacy and quiet."⁴ In August, 2001, the authority again notified the tenants about a noise complaint. The authority asked the tenants to refrain from turning the volume on their television too loudly. In April, 2002, Shkolnik went to the authority to inquire about the possibility of getting his own apartment, separate from his wife. He was informed that he could complete a transfer application, but Shkolnik did not pursue the matter further. Noise complaints from the tenants' neighbors began to increase. In June, 2002, the authority notified the tenants on two occasions about noise complaints, reminded them about the terms of their lease, and advised them that counselling was available, without charge, from Family Services, Inc. The authority's director also notified the tenants' son about the issue and about services for his parents. The noise problem was particularly acute for Joanne Taylor, a sight-impaired woman with slightly enhanced hearing, who moved into the apartment directly below the tenants in July, 2002, and was particularly sensitive to and disturbed by the tenants' ongoing yelling, stomping on the floor, and loud television.

On October 16, 2002, the authority held a private conference with the tenants to discuss ways of resolving the excessive noise problem. The tenants agreed to use earphones when watching television and to stop screaming at each other and disturbing their neighbors.⁵

Unbeknownst to the authority, Barskaya's health began to deteriorate significantly. She visited a hospital on several occasions where she was diagnosed with and treated for pain, shingles, and mild to moderate dementia.⁶ At the same time, the authority continued to receive numerous complaints from Taylor about the ongoing loud noises emanating from the tenants' apartment.

On November 14, 2002, the authority served the tenants with a thirty-day notice to quit. The reason for the eviction was the tenants' continued excessive noise, in violation of the terms of their lease, after having been notified on numerous occasions about the problem and having agreed to modify their offending conduct. The tenants filed a complaint with the authority pursuant to the grievance procedure promulgated by the Department of Housing and Community Development, see 760 Code Mass. Regs. § 6.08 (1998), alleging that they had been issued an unfair notice to quit based on "subjective complaints," and they requested that the notice be withdrawn.⁷ In response, the authority held a resolution conference on November 25, 2002, at which the tenants' son presented medical documentation that his mother was suffering from pain and depression, the parties discussed what could be done to resolve the noise issue, and the tenants requested that the authority withdraw the notice to quit because Barskaya was ill. See id. at § 6.08(4)(b). Following the conference, the authority sent the tenants a letter reminding them about making arrangements for Barskaya to receive medical attention, advising them that the authority would not be withdrawing its notice to quit,⁸ and informing them that a grievance hearing would be scheduled. See id. at § 6.08(4)(c).

In response to a request from the authority's director, a geriatric nurse specialist from Family Services, Inc., and an outreach coordinator from the Andover Senior Center visited the tenants to assess Barskaya's need for medical or social services. An evaluative hospitalization was suggested so that an appropriate medical treatment plan could be implemented once Barskaya's condition was more fully known. As a result of her hospitalization, Barskaya was diagnosed with post herpetic neuralgia (pain after shingles), chronic lymphoproliferative disorder (lymphoma), Alzheimer's dementia, and depression. She was discharged with a recommendation for outpatient care and psychiatric support.

During November and December, 2002, the authority received numerous noise complaints from Taylor about the tenants. On January 8, 2003, a grievance hearing was held. See 760 Code Mass. Regs. § 6.08(4)(f). Shkolnik, speaking through his son, denied that he and his wife had caused any noise. The authority's director reported having received noise complaints on numerous dates, and Taylor stated that she had been disturbed by the tenants' arguments and loud television on a nearly daily basis. Taylor further stated that while she did not want the tenants to lose their apartment, she would like them to be reasonably quiet. After reviewing the evidence, the grievance committee upheld the authority's decision to proceed with the tenants' eviction.

On February 28, 2003, the authority filed its summary process action, seeking possession of the tenants' apartment. In their April 8, 2003, answer and counterclaim, the tenants denied any lease violations, asserted that the eviction proceedings were causing them extreme emotional distress, and alleged that the authority had violated their rights under the Fair Housing Act, the Rehabilitation Act, and G. L. c. 151B, by failing reasonably to accommodate Barskaya's medical conditions. The tenants also requested the following accommodations: (1) installation of acoustical carpeting in their apartment; (2) installation of a sound-absorbing drop ceiling in Taylor's apartment; (3) a room air conditioner so that windows could remain closed in warm weather; and (4) dismissal or continuation of the summary process action until after installation of the requested accommodations.

The authority proceeded to investigate the feasibility of the requested physical modifications. It concluded that "acoustical carpeting" did not exist and that a drop ceiling could not be installed because the existing ceiling was too low and the door frames were too high. Installation of a room air conditioner would be possible. The authority set up yet another meeting between the tenants and Taylor further to discuss resolution of the noise problem, but the meeting was cancelled by the tenants' attorney. Notwithstanding the fact that Barskaya began to receive more intensive medical care, which somewhat improved her condition, she was not entirely compliant with the treatment, and complaints about the tenants' excessive noise continued. Following a bench trial on the authority's summary process action, the judge found that the tenants' noise was severe and recurring, and that unless it was abated, the authority would be entitled to possession of their apartment. The judge opined that there was no merit to the tenants' contention that, prior to eviction proceedings, the authority had made no attempt to reach a reasonable accommodation. To the contrary, the judge found significant the tenants' repeated denials that they were the cause of excessive noise and the authority's efforts to resolve the problem short of eviction. The judge dismissed the tenants' counterclaim for discrimination. He also stayed the entry of judgment on the summary process action so the tenants could continue to work with the authority and with their neighbors in order reasonably to accommodate all residents' needs. Three months later, after a hearing, judgment entered awarding the authority possession of the apartment, presumably because the tenants had continued to violate the terms of their lease.⁹ Ultimately, the tenants were moved to an apartment in another housing complex owned by the authority.

The thrust of the tenants' argument here is that they made a request for a reasonable accommodation of Barskaya's medical conditions at the November 25, 2002, resolution conference, namely the withdrawal or delay of eviction proceedings. At that point, the tenants contend, the authority was required to engage in an interactive process for determining...