#30-11, Voloshen v. Sligo Station Condominium Association (June 25, 2012) (Panel: Fleischer, Whelan, Zajic)

The tenant of a condominium unit filed several complaints against the condominium association.  The Commission rejected several of the complaints for lack of jurisdiction, on the grounds that a tenant is not a member of the association and does not have the standing to raise all the issues that a member can.  The Commission did accept jurisdiction of several issues that directly affected the tenant, such as allegations of defective conditions in the common area that caused injury to her or her property, and of her claim that she was entitled to special parking privileges due to her disability.  While the case was pending, most of these issues were settled.  Only the issue of parking was left for the hearing panel to decide.

As noted, the tenant had a medical disability and claimed that the association had a duty to provide reserved parking for disabled residents.  Although the association had at one time painted handicapped symbols on certain spaces they had deteriorated over the years and the spaces were often used by non-handicapped drivers.  The tenant claimed that the association must provide clearly-marked handicapped spaces directly in front of the entrance to her building. 

The association agreed to provide handicapped parking, but it said that it had the right to determine where they were and how to mark them.  The association claimed that the law on handicapped parking required it to post a sign in front of the parking spaces and that for it to comply with that law, it would have to drill a hole in the center of the sidewalk leading to the building entrance.  In addition, providing a space generally for handicapped parking would allow other disabled residents to use the space instead of the tenant alone.  The association proposed to mark a space adjacent to the space desired by the tenant, where it could post the sign in the grass; and it wanted the sign to state that the use of the space was reserved for the tenant's unit number only.

This case is the CCOC's first in-depth treatment of the issue of reasonable accommodation for disabled residents of common ownership communities.  The panel made the following rulings:

1. The CCOC had jurisdiction of this type of complaint because it raised the issues of the authority of the association to alter or amend the common areas (the parking lot), and the authority of the association to spend funds (whether and where to post the necessary signage).

2. The complaint is not barred by the "business judgment" rule, which requires the CCOC to uphold the association's decision unless there is proof of bad faith or fraud.  The relevant laws require the association to make accommodations for its residents' disabilities and it does not have the discretion to refuse or fail to do so.

3. The CCOC was within its jurisdiction to accept the complaint rather than to refer it to another agency with more expertise over civil rights or discrimination issues.   The relevant laws do not require that citizens with discrimination complaints to file them only with certain agencies.  The issues in this case are relatively simple.  The evidence showed that the County's Office of Human Rights would not have proceeded with a complaint if it were shown that the complaint had already been filed with the CCOC.  Finally, the CCOC complaint had been pending and litigated for many months, and to require it to be suspended so that the parties could proceed in front of another agency would be a waste of time and resources for all concerned.

4. The relevant laws are the U.S. Fair Housing Act, 42 U.S.C. Section 3604, and 24 C.F.R. Section 100.204, which prohibits the refusal to make reasonable accommodations in rules and services when such accommodations are necessary to allow handicapped people to use a dwelling, and Section 27-12 of the Montgomery County Code, which also prohibits the refusal to make reasonable accommodations necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.

5. While the wishes of the handicapped person must be considered in determining what is a reasonable accommodation, the association should be upheld if its response is a reasonable one considering all the circumstance.  The tenant essentially wanted an exclusive space for her own use with an effective enforcement mechanism.  The association's proposal gave her both.  Although the space it offered was not directly in front of the building entrance, it was directly adjacent to that space and the tenant did not show that she was unable to use the adjacent space.  Moreover, the posting of the necessary sign would have damaged association property and obstructed the sidewalk if placed directly in front of the space the tenant wanted.  The sign would not identify the tenant by name or by unit number but only by permit number.  The association's proposals were reasonable and the panel upheld them.

6. The panel denied both parties' motions for attorneys fees on the grounds that this was an issue of first impression and there was no misconduct or unnecessary delay by either party.