CIMARRON FOOTHILLS COM. ASS'N v. Kippen

• Decision Date: 10 December 2003
• Docket Number: No. 2 CA-CV 2003-0048.,2 CA-CV 2003-0048.
• Citation: 79 P.3d 1214,206 Ariz. 455
• Parties: CIMARRON FOOTHILLS COMMUNITY ASSOCIATION, an Arizona corporation, Plaintiff/Counterdefendant/Appellee, v. James KIPPEN and Betty Kippen, husband and wife, Defendants/Counterclaimants/Appellants.
• Court: Arizona Court of Appeals

79 P.3d 1214

206 Ariz. 455

CIMARRON FOOTHILLS COMMUNITY ASSOCIATION, an Arizona corporation, Plaintiff/Counterdefendant/Appellee, v. James KIPPEN and Betty Kippen, husband and wife, Defendants/Counterclaimants/Appellants.

No. -0048.

Court of Appeals of Arizona, Division 2, Department A.

December 10, 2003.

Haralson, Miller, Pitt, Feldman and McAnally, By Stanley G. Feldman, Parrish & Berry, By Richard Parrish, Tucson, for Defendants/Counterclaimants/Appellants.

John A. Baade, Tanis A. Duncan, Tucson, for Plaintiff/Counterdefendant/Appellee.

OPINION

HOWARD, J.

? 1 After a bench trial, the trial court found that appellee Cimarron Foothills Homeowners Association was entitled to enforce its deed restrictions against appellants James and Betty Kippen, despite the Kippens' claim that the restrictions violated the federal Fair Housing Amendments Act ("FHAA"). The Kippens argue the trial court erred in finding that their proposed accommodation was not reasonable and necessary under the FHAA and would extend a preference to them. Because the trial court did not clearly err in finding that the Kippens failed to demonstrate the necessity of their proposed accommodation, we affirm.

BACKGROUND

? 2 "We view the facts in the light most favorable to sustaining the trial court's judgment." Southwest Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, ? 2, 36 P.3d 1208, ? 2 (App.2001). For several years, James and Betty Kippen have operated an elder care facility out of their home in Cimarron Foothills Estates. Together, they care for approximately nine elderly people who, because of various health problems, require assistance in their daily lives. As part of their services, the Kippens regularly transport their residents to doctor's appointments and social functions. The Kippens also arrange several extended vacations per year for their residents, some lasting as long as six weeks. For most of these trips and errands, the Kippens use a large recreational vehicle ("RV") that has enough room for the residents' medical equipment and has a bathroom, which some of the residents require on even the shortest trips. When not traveling, the Kippens generally park the RV on their property, but, contrary to the "conditions, reservations and restrictions" ("CR & R's") applicable to their property, they do not keep it in a garage or other enclosure. The RV is therefore often visible to several of the Kippens' neighbors.

? 3 In 2000, responding to a neighbor's complaint, the Cimarron Foothills Homeowners Association notified the Kippens that they could not park the RV on their property in violation of the CR & R's. The Kippens eventually moved the RV, keeping it in storage for approximately five weeks. This arrangement, however, was inconvenient for the Kippens and their residents, so the Kippens brought the RV back to their property. As a result, the Association filed this action, seeking an injunction to force the Kippens to comply with the CR & R's. The Kippens filed a counterclaim, alleging that, under the FHAA, parking the RV on their lot was "reasonable" and "necessary to afford [the residents] equal opportunity to use and enjoy" their home. 42 U.S.C. ß 3604(f)(3)(B). The Kippens therefore requested a declaratory judgment authorizing them to park the RV on their property, without an enclosure, as an accommodation under the FHAA.

? 4 After a two-day bench trial, the trial court determined that "some accommodation" was reasonable and necessary but that such an accommodation "d[id] not extend to allowing the [RV] to be parked on the premises at all times when the Kippens are in residence." The trial court further found that the Kippens' proposed accommodation would "extend ... a preference ... not necessary for the equal opportunity to enjoy their home" in that "[o]ther residents would be required to have a garage or enclosed structure to park a recreational vehicle on their premises regularly." Accordingly, the trial court ruled in favor of the Association and permanently enjoined the Kippens from keeping the RV on their property, "other than in an enclosed garage."¹ The Kippens now appeal that judgment.

DISCUSSION

? 5 Pursuant to the relevant portion of the FHAA, 42 U.S.C. ß 3604(f)(2), it is unlawful

[t]o 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, because of a handicap of—

(A) that person; or

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C) any person associated with that person.

And, pursuant to 42 U.S.C. ß 3604(f)(3)(B), discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." Thus, as the trial court recognized, a proposed accommodation under the FHAA must be "(1) reasonable and (2) necessary (3) to afford handicapped persons equal opportunity to use and enjoy housing." See Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment, 284 F.3d 442, 457 (3rd Cir.2002).

? 6 We generally defer to federal courts' interpretation of federal law. PLM Tax Certificate Program 1991-92, LP v. Denton Investments, Inc., 195 Ariz. 210, ? 16, 986 P.2d 243, ? 16 (App.1999). "Congress intended the FHAA to protect the right of handicapped persons to live in the residence of their choice in the community." City of Edmonds v. Washington State Bldg.Code Council, 18 F.3d 802, 806 (9th Cir.1994), aff'd, City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995). "The statute is worded as a broad mandate to eliminate discrimination against and equalize housing opportunities for disabled individuals." Bronk v. Ineichen, 54 F.3d 425, 428 (7th Cir.1995). When interpreting the reasonable accommodation provisions of the FHAA, courts generally rely on case law and other authority interpreting the similar provisions under both the Rehabilitation Act ("RA") and the Americans with Disabilities Act ("ADA"). Giebeler v. M & B Assocs., 343 F.3d 1143, 1149 (9th Cir.2003). The Association does not dispute that the residents of the Kippens' home qualify as handicapped under the FHAA or that the FHAA applies to the Kippens' group home and the CR & R's at issue.

? 7 We must resolve what the requested accommodation actually is before analyzing whether it is mandated by the FHAA. Cf. id. at 1148 ("conclusion that a type of alteration to a policy is an `accommodation' ... is only the first step"). The Kippens characterize the proposed accommodation as providing their residents access to the RV, which the trial court found to be "very important" to the physical and mental well-being of the residents. But the Association contends the requested accommodation is to allow the Kippens to store an RV on their property without a garage or other satisfactory enclosure.

? 8 The CR & R's allow RV's on all lots within the subdivision. Therefore, any resident, able-bodied or handicapped under the FHAA, may store an RV on his or her lot. The CR & R's only require that it be enclosed within a garage. Generally, an accommodation is a deviation from the norm. Cf. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397, 122 S.Ct. 1516, 1521, 152 L.Ed.2d 589, 600 (2002) ("By definition any special `accommodation' requires the employer to treat an employee with a disability differently, i.e., preferentially."); see also 42 U.S.C. ß 12111(9) (listing types of accommodations available under the ADA). Thus, because any subdivision resident may store an RV on his or her lot, the requested "accommodation" is, in fact, the waiver of the garage requirement.

? 9 The Kippens argue the trial court erred at the outset by relying on an incorrect burden of proof as to the reasonableness of their proposed accommodation. But they did not present this argument in the trial court and have therefore waived it. Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) ("Because a trial court and opposing counsel should be afforded the opportunity to correct any asserted defects before error may be raised on appeal, absent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal."); see also Navajo Nation v. MacDonald, 180 Ariz. 539, 547, 885 P.2d 1104, 1112 (App.1994). Moreover, the issue of reasonableness was not determinative in the trial court, nor, as discussed below, is it determinative in this appeal.

? 10 The Kippens further argue that their proposed accommodation is reasonable and necessary to the residents' use of the home. The Association responds that parking the RV on the Kippens' property, unenclosed, as the Kippens have proposed, is not a necessary accommodation to ensure the residents an equal opportunity to live in their home. In order to prevail on this claim, the Kippens were required to demonstrate their proposed accommodation was "necessary to afford [the residents] equal opportunity to use and enjoy" the Kippens' home. 42 U.S.C. ß 3604(f)(3)(B).

To prove that an accommodation is necessary, "[p]laintiffs must show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice." Smith & Lee [, Inc. v. City of Taylor, Mich.], 102 F.3d [781,] 795[ (6th Cir.1996)]. Put another way, "[w]ithout a causal link between defendants' policy and the plaintiff's injury, there can be no obligation on the part of defendants to make a reasonable accommodation." [U.S. v. California Mobile Home Mgmt. Co.], 107 F.3d [1374,] 1380[(9th Cir.1997)].

Giebeler, 343 F.3d at 1155. Although we recognize the burden of proving the reasonableness of a proposed accommodation shifts if the proponent makes a prima facie showing, the burden of showing necessity does not shift. Id.;² Oconomowoc Residential...