Boulder Meadows v. Saville

• Decision Date: 13 April 2000
• Docket Number: No. 99CA0687.,99CA0687.
• Citation: 2 P.3d 131
• Parties: BOULDER MEADOWS; Countryside Village Associates/Boulder Limited Partnership; Uniprop, Inc.; GP Countryside Boulder Corporation, Plaintiffs-Appellants, v. Barbara SAVILLE, Defendant-Appellee.
• Court: Colorado Court of Appeals

2 P.3d 131

BOULDER MEADOWS; Countryside Village Associates/Boulder Limited Partnership; Uniprop, Inc.; GP Countryside Boulder Corporation, Plaintiffs-Appellants, v. Barbara SAVILLE, Defendant-Appellee.

No. 99CA0687.

Colorado Court of Appeals, Div. V.

April 13, 2000.

Fred M. Hamel, Denver, Colorado; Coughlin & Kitay, P.C., Theresa L. Kitay, Norcross, Georgia, for Plaintiffs-Appellants.

Sanderson & Associates, P.C., David S. Sanderson, Boulder, Colorado; Mary Helen Miller, Boulder, Colorado for Defendant-Appellee.

Hale Hackstaff Tymkovich & ErkenBrach, L.L.P., Timothy M. Tymkovich, Richard A. Westfall, Michael D. Siffring, Denver, Colorado, for Amicus Curiae Colorado Manufactured Housing Association.

Frank & Finger, P.C., Terrence Murray, Darrell Damschen, Evergreen, Colorado, for Amicus Curiae Colorado Manufactured Housing Association (On the Brief). Opinion by Judge CASEBOLT.

In this unlawful detainer action involving a counterclaim for violation of federal and state fair housing laws, plaintiffs, Boulder Meadows; Countryside Village Associates/Boulder Limited Partnership; Uniprop, Inc.; and GP Countryside Boulder Corporation, appeal the judgment entered after a bench trial in favor of defendant, Barbara Saville. We affirm.

Boulder Meadows is a mobile home park owned by Countryside Village Associates. GP Countryside Boulder Corporation is the general partner of Countryside Village, and Uniprop, Inc., is the managing agent of the park. Collectively, these entities are referred to as Boulder Meadows.

Saville was a tenant at Boulder Meadows for over ten years. Under the terms of her tenancy, Saville was required to pay lot rent and was responsible for the exterior maintenance of her home and the home site.

Eight years into her tenancy, Boulder Meadows posted a notice to quit on Saville's home, asserting Saville's failure to maintain her home and lot site. Saville responded by tendering a then-due rent check with a letter explaining that her medical condition "slow[ed] her up" when doing physical and mental labor and caused dizziness and seizures. In response, Boulder Meadows returned her rent check and commenced an unlawful detainer action. Saville prevailed in the trial, and Boulder Meadows appealed.

While the appeal was pending, Boulder Meadows sent Saville two notices requesting her to perform maintenance and make certain repairs to her home and lot site. Because she was physically unable to perform the maintenance personally, Saville posted advertisements offering free rent in her home in exchange for maintenance services, but she received no response.

Approximately six months later, and shortly after she received the second notice requesting her to make repairs, Saville invited a caretaker to live in her home in exchange for performing maintenance work. The caretaker was a former park resident who had been recently evicted from the park for nonpayment of rent.

Soon after the caretaker moved into Saville's home, Boulder Meadows' resident manager informed her that the caretaker's presence in her home was a violation of Section N-5 of Boulder Meadows' Community Covenants, which prohibited anyone other than persons listed on the lease agreement from living on the premises. Section N-5 also required that guests be registered with the management and that such persons could only visit residents for up to thirty days in any calendar year. Further, the covenants provided that unregistered persons would be deemed trespassers and immediately evicted.

In response to Boulder Meadows' appeal in the unlawful detainer action, the case was remanded and Saville prevailed in the retrial. On the same day as the conclusion of the retrial, Boulder Meadows posted on Saville's door an unwarranted five-day rent demand. Boulder Meadows later withdrew this rent demand. Shortly afterward, Boulder Meadows issued a notice to quit to Saville for violation of covenant rules N and N-5, and it also initiated additional eviction proceedings.

In response, Saville delivered a letter to Boulder Meadows requesting a reasonable accommodation for her disability. Boulder Meadows responded with three alternative accommodations, all of which Saville rejected as unreasonable. Saville filed a counterclaim in the eviction action alleging that Boulder Meadows had failed reasonably to accommodate her disability and had violated federal and state fair housing laws.

After a bench trial, the trial court entered judgment in favor of Saville on all claims and awarded her compensatory and punitive damages totaling $150,000.

I.

Boulder Meadows first asserts the trial court erroneously shifted the burden of proof concerning alleged violations of the federal and Colorado fair housing acts. We disagree.

The Colorado Fair Housing Act (CFHA), § 24-34-502.2, C.R.S.1999, prohibits discriminatory housing practices. The statute makes it unlawful for any person to discriminate in the sale or rental of a dwelling to any renter because of a disability of the renter, or to discriminate in the terms, conditions, or privileges of rental of a dwelling because of a disability of the renter. Discrimination includes a refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a renter equal opportunity to use and enjoy a dwelling. Section 24-34-502.2(2)(b), C.R.S.1999.

The federal Fair Housing Amendments Act of 1988 (FHAA), 42 U.S.C. § 3601, et seq., (1999) contains nearly identical language prohibiting discrimination.

Because the CFHA is almost identical to the FHAA, federal case authority is persuasive in interpreting the provisions of the CFHA. Weinstein v. Cherry Oaks Retirement Community, 917 P.2d 336 (Colo.App. 1996). The United States Supreme Court has stated that the FHAA must be given a "generous construction" to carry out a "policy that Congress consider[s] to be of the highest priority." Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 211-212, 93 S.Ct. 364, 367-68, 34 L.Ed.2d 415 (1972).

As pertinent here, to prevail on a FHAA claim, a plaintiff has the burden of proving discrimination against any person in the terms, conditions, or privileges of rental of a dwelling because of a handicap. Roe v. Housing Authority, 909 F.Supp. 814 (D.Colo. 1995). Under the CFHA, a complainant has a similar burden of proof when a disability is involved. Weinstein v. Cherry Oaks Retirement Community, supra.

A handicap and a disability have the same meaning under state and federal law.

A plaintiff may establish discrimination by demonstrating that the challenged regulation discriminates against disabled persons on its face and serves no legitimate government interest. Alternatively, a complainant must show either discriminatory intent or discriminatory impact. Discriminatory intent is proved by showing that disabilities like those of the complainant were, in some part, the basis for the policy being challenged. Discriminatory impact is shown by proof that a given policy or practice has a greater impact upon disabled than non-disabled persons. Weinstein v. Cherry Oaks Retirement Community, supra.

Here, Saville asserted discriminatory impact, contending that the rules and covenants requiring her to maintain her home and the lot site had a greater impact on her than they did on non-disabled persons. The trial court found that Saville had proved by a preponderance of the evidence that she was disabled, and that Boulder Meadows had discriminated against her because of her disability by failing to provide any reasonable accommodation. The court specifically found that the three alternatives Boulder Meadows offered were not reasonable, and held that the alternative Saville had proffered, allowing the caretaker to remain, was a reasonable accommodation.

Hence, the trial court found that Saville had met her burden of proving all the required elements of her claim. Boulder Meadow's argument is based on one of the concluding paragraphs of the court's order, in which it added that "[Boulder Meadows] failed to prove by a preponderance of the evidence that no reasonable accommodation could have been made to Ms. Saville to allow her the use and enjoyment of her home." Boulder Meadows asserts that this phrase indicates the court improperly shifted the burden of proof to it, rather than requiring Saville to prove the elements of the claim. We reject this contention.

In some circumstances, once a plaintiff has proven a prima facie case of discriminatory impact, the burden may shift to the defendant to demonstrate (1) that there was some legitimate, nondiscriminatory reason for its action, (2) that no less discriminatory alternative was available, and (3) that no reasonable accommodation could be made. See North Shore-Chicago Rehabilitation Inc. v. Village of Skokie, 827 F.Supp. 497 (N.D.Ill. 1993)

; Weinstein v. Cherry Oaks Retirement Community, supra. However, Boulder Meadows did not assert at trial that no less discriminatory alternative was available or that no reasonable accommodation could have been provided to Saville. It acknowledged that it had a duty reasonably to accommodate Saville after she made an appropriate request, but contended that Saville could not show that it had failed reasonably to accommodate her.

Accordingly, the trial court's statement about Boulder Meadows' failure to prove that no reasonable accommodation could have been made was gratuitous and irrelevant to the issues before it. Hence, the error, if any, is harmless, and reversal is not required. See C.R.C.P. 61; Stegall v. Stegall, 756 P.2d 384 (Colo.App.1987).

II.

Boulder Meadows next contends the trial court erroneously held that it had failed to provide a reasonable accommodation. We disagree.

A.

Boulder Meadows first asserts the trial court erred because it imposed a duty to accommodate upon Boulder Meadows before such duty actually arose. We reject this assertion.

A housing provider's duty...