Bishow v. King Farm Village Center Condominium II #42-15 (March 18, 2016) (Panel: Fleischer, Ethier, Winegar)

The unit owners, husband and wife, both of whom had mobility impairments, filed a complaint against their Condo claiming that the Condo refused to grant them a reasonable accommodation for their disabilities by rejecting their request for a reserved parking space near the entrance of the building. The Condo raised several defenses, including that the claim was barred by the statute of limitations on disability claims, that the State had already decided on the claims, that the CCOC had no jurisdiction over such claims, and that the desired action was not the only reasonable accommodation that could be made, and that granting the accommodation requested would deny equal parking rights to other members.

It is important to understand the parking situation in this Condo. This is a multi-unit building of 51 units and only 30 parking spaces. 15 of the units have no garages. The other 36 units have one-car garages and additional space in the driveways in front of their garages for another car. Therefore, the garage units have reserved parking for 2 cars each. The other units have only whatever parking is available in the common lot.

At the time of the complaint, there was no parking set aside for handicapped residents, and the Condo had a rule limiting parking in the common lot to the owners of the non-garage units. The complainants owned a garage and had spaces for two vehicles, however, the spaces were not wide enough for their mobility needs and they wanted a reserved space in the common parking lot near the building entrance, which was handicapped-accessible. In turn, this would have required the Condo to reserve two spaces for them, reducing the number of slots available to the 15 non-garage owners to 28, or less than 2 per unit.

In 2005, the complainants filed a case with the U.S. Department of Housing and Urban Development (HUD) alleging disability discrimination. The investigator concluded that there was insufficient evidence of discrimination and the complaint was dismissed without a hearing. Further negotiations between the parties were not successful.

Evidence also showed that the Condo failed to keep the common areas on both sides of the complainants’ driveway in good condition, which made the driveway unsuitable for handicapped users. At the same time, the evidence showed that the building entrance facing the parking lot was handicapped-accessible, and that using it as a place to drop off a visitor would not interfere with the flow of traffic to and from the lot.

The hearing panel made several important rulings:
1. There is no statute of limitations applicable to CCOC complaints.
2. The CCOC has jurisdiction over complaints seeking reasonable accommodations under Section 10B-8, which grants it authority over an association’s failure to maintain the common areas and the authority of the association to compel anyone to take action, or to compel anyone not to take action, concerning the use of the common areas.
3. The CCOC was not bound by the HUD decision to dismiss the 2005 complaint, because that was not a decision issued after a due process hearing at which the parties could present evidence and cross examine the other party’s evidence.
4. The Condo’s decision to limit parking in the common parking lot only to units which had no garages was invalid. Under the governing documents all members have a right of access to the common areas and the parking rule conflicted with the Bylaws. This does not mean the Condo cannot regulate the use of the lot at all, nor that it cannot give some members reserved spaces and not others; but it does mean that the Condo cannot prevent the garage unit owners from using the lot altogether.
5. Reasonable accommodation did not require the Condo to reserve spaces in the common parking lot to these complainants. They could use the building entrance for access. They could also use their own driveway and entrance to their unit if the Condo rebuilt the common areas on both sides of the complainants’ driveway so that there was sufficient space on both sides of the vehicle for handicapped access to the vehicle when it was in the driveway.

The panel invalidated the rule limiting parking in the common lot to non-garage unit owners only, and it ordered the Condo to make the repairs necessary to the common areas so that the complainants’ driveway was suitable for persons with mobility disabilities.