Trovato v. City of Manchester, N.H.

• Citation: 992 F.Supp. 493
• Decision Date: 30 September 1997
• Docket Number: Civil No. 96-71-M
• Parties: Sylvia TROVATO and Sharleen Durost, Plaintiffs, v. CITY OF MANCHESTER, NEW HAMPSHIRE, Defendant.
• Court: U.S. District Court — District of New Hampshire

992 F.Supp. 493

Sylvia TROVATO and Sharleen Durost, Plaintiffs, v. CITY OF MANCHESTER, NEW HAMPSHIRE, Defendant.

Civil No. 96-71-M

United States District Court, D. New Hampshire.

September 30, 1997.

COPYRIGHT MATERIAL OMITTED

Lynne J. Zygmont, Disabilities Rights Center, Inc., Concord, NH, for Plaintiffs.

Thomas I. Arnold, III, City of Manchester Solicitor's Office, Manchester, NH, Kevin M. St. Onge, Lindabury, McCormick & Estabrook PC, Westfield, NJ, for Defendant.

ORDER ON SUMMARY JUDGMENT AND PERMANENT INJUNCTION

McAULIFFE, District Judge.

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"), 42 U.S.C.A. §§ 12131-12134 (West 1995); Section 504 of the Rehabilitation Act, 29 U.S.C.A. § 794 (West Supp.1997); and the Fair Housing Amendments Act of 1988 ("FHAA"), 42 U.S.C.A. § 3604(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 rain and New Hampshire's mud season) the ground becomes rutted, iced, snow covered, and impassable for plaintiffs.

Toward that end, Mr. 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 Mr. 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.

Understandably disappointed, Mr. Trovato sought and obtained legal help from the Disabilities Rights Center, Inc. On July 27, 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 14, 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 to, 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 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., 960 F.2d 200, 204 (1st Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (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, 976 F.2d 791, 794 (1st Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (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. 42 U.S.C.A. § 3604(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 to use and enjoy a dwelling". 42 U.S.C.A. § 3604(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, 102 F.3d 781, 794-96 (6th Cir.1996).

The court finds, as the parties agree, that plaintiffs are indeed "handicapped" within the meaning of the FHAA, 42 U.S.C.A. § 3602(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., 51 F.3d 328, 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 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, 51 F.3d at 335 (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...