Ward v. Black Point Beach Club - 0150047   Final Decision

CHRO No. 0150047

Commission on Human Rights and Opportunities ex rel. Carol Ward, Complainant

v.

Black Point Beach Club Association, et al., Respondents

August 30, 2002

FINAL DECISION

I. Parties

The complainant is Carol Ward ("complainant"), of 23 Blue Heron Road, Niantic, Connecticut. She was represented by Attorney Robert A. Richardson of Garrison, Levin-Epstein, Chimes & Richardson. The Commission on Human Rights and Opportunities ("commission"), located at 21 Grand Street, Hartford, Connecticut, was represented by Attorney Regina M. Hopkins. The respondents ("respondents") are the Black Point Beach Association, Inc. ("Association"), the Black Point Zoning Commission ("zoning commission"), the Black Point Zoning Board of Appeals ("ZBA"), and the Black Point Board of Governors ("Board of Governors"). The respondents have a mailing address of P.O. Box 715, Niantic, Connecticut. They were represented by Attorney Edward B. O'Connell of Waller, Smith & Palmer, P.C.

II. Summary of Complaint and Decision

The complainant filed her complaint on September 14, 2000. In her complaint, as clarified by her counsel's correspondence dated April 25, 2002, the complainant alleged that the respondents illegally discriminated against her on the basis of her physical disability and failed to accommodate her disability. She alleges that they violated General Statutes §§ 46a-64c(a)(6)(A), 46a-64c(a)(6)(C)(i) and 46a-64c(a)(6)(C)(ii), which track 24 C.F.R. 100.203(a) and 24 C.F.R. 100.204(a) of the federal fair housing act, and the federal Americans with Disabilities Act, 42 U.S.C. 12101 et seq.
For the reasons set forth herein, the ZBA is found to have discriminated against the complainant in violation of federal and state disability and fair housing laws. Relief is awarded as set forth herein. The complaint is dismissed as to the remaining respondents.

III. Procedural History

The complaint was filed on September 14, 2000 and assigned to an investigator. After preliminary investigation, the investigator found reasonable cause to believe that an unfair practice was committed as alleged in the complaint. On September 28, 2001, the investigator certified the complaint and the results of the investigation to the commission's executive director and to the attorney general of the State of Connecticut.
Upon certification of the complaint, the Honorable Leonard E. Trojanowski was appointed as presiding human rights referee. At the hearing conference on November 1, 2001, the public hearing was scheduled to commence on May 14, 2002. On April 15, 2002, the complaint was reassigned to the undersigned. The public hearing was held on May 14 and 15, 2002. The witnesses were the complainant, Joseph Sweeney ("Sweeney"), Elizabeth Rasmussen ("Rasmussen") and Dr. Murray Wellner ("Wellner"). Sweeney has been on the ZBA for six or seven years and its chairman since 1997. (Sweeney, Tr. 194.) Rasmussen was the Association's zoning enforcement officer ("ZEO") from August 1999 to July 2001. (Rasmussen, Tr. 234, 263.) Wellner has been the complainant's treating physician for approximately twenty years. (Wellner, Tr. 290-91.)
The complainant and the respondents filed briefs on July 2, 2002. The respondents filed their response to the complainant's motion for attorney fees and costs on July 18, 2002, at which time the record closed.

IV. Issues and Parties' Positions

The complainant claims that federal and state disability and fair housing laws apply to zoning practices and procedures. She alleges that the respondents have failed to reasonably accommodate her disability because they believe that these laws do not apply to zoning restrictions. Specifically, she claims the respondents failed to grant her a variance or to otherwise change their zoning laws to allow her initially to build an attached garage to now to build an attachment from her detached garage for direct, enclosed access to her house. The complainant seeks, inter alia, an order that the ZBA grant her a variance to build an attachment between her existing detached garage and her house.
The respondents argue that the complaint should be dismissed because it was not filed within 180 days of the alleged discriminatory act. They assert that, even if the complaint was timely filed, the complainant failed to meet the requisite burden of proof. They also argue that by expanding the size of her porch and locating her detached garage where she did, rather than building an attached garage in another reasonable location on her property, she has created the situation about which she now complains. The respondents maintain that the ZBA correctly denied her application for a variance because variances are issued based on property conditions, not upon personal health considerations. According to the respondents, alternatives currently exist which would reasonably accommodate the complainant's situation without requiring a variance.

V. Findings of Fact

References to testimony are to the witness and the transcript page where the testimony is found. References to an exhibit are by party designation and number. The complainant's exhibits are denoted as "C. Ex." followed by the exhibit number; and the respondent's exhibits are denoted by " R. Ex." and the number. The commission did not proffer any exhibits.
Based upon a review of the pleadings, exhibits, testimony and transcripts, and an assessment of the credibility of the witnesses, the following facts relevant to this decision are found:

VI. Analysis

A. Disability and fair housing laws supersede zoning restrictions

The respondents erroneously contend that the federal and state disability and fair housing laws do not supersede zoning law. In fact, federal and state disability and fair housing laws do supersede the respondents', as well as municipal and state, zoning ordinances and laws. As the Connecticut Supreme Court recently reaffirmed, the fair housing laws "reach a wide variety of discriminatory housing practices, including discriminatory zoning restrictions." (Citations omitted.) Avalonbay Communities, Inc. v. Town of Orange, 256 Conn. 557, 592 (2001). See also Tsombanidis v. City of West Haven, 180 F.Sup.2d 262, 284-85 (D. Conn. 2001) citing City of Emonds v. Oxford House, Inc., 514 U.S. 725 (1995)

.
B. Statute of limitations

General Statutes § 46a-82(e) provides in part that a complaint "must be filed within one hundred and eighty days after the alleged act of discrimination". Although the 180-day requirement is mandatory, it is not subject matter jurisdictional. Williams v. Commission on Human Rights, 257 Conn. 258, 271 (2001). Thus, this filing deadline is subject to the doctrines of continuing violations, State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 473 (1989), and equitable tolling, Williams, 257 Conn. 284.
The complainant contends that the complaint was timely filed. She alleges there were three related violations: the September 1998 denial of her variance by the ZBA, her June 2000 correspondence to Rasmussen, and her meeting with the zoning commission. She contends that these incidents establish the existence of a continuing violation. She also argues that if a continuing violation does not exist, the principle of equitable estoppel applies to toll the statute of limitations. (Complainant's Post hearing brief, pp. 37-43.)
The respondent argues that the complaint should be dismissed because it was not filed within 180 days of the alleged act of discrimination and the complainant has not demonstrated the existence of any equitable tolling factor. (Respondents' Post hearing brief, pp. 3-11.)

1. Continuing violation

The complainant argues that the doctrine of continuing violation applies. A continuing violation represents an exception to the statutory limitation period within which a complainant must file a timely charge of discrimination. In situations in which the evidence supports a finding of a continuing violation, the filing deadline is tolled so as to permit claims that would otherwise be time barred. A continuing violation can arise when the incidents either constitute a series of related acts or were undertaken pursuant to the maintenance of a discriminatory system. Quinn v. Green Tree, 159 F.3d 759, 765-66 (1998); State of Connecticut, 211 Conn. 473; Board of Education v. Commission on Human Rights and Opportunities, 177 Conn. 75, 77 (1979).

a. Series of related acts

To establish a series of related acts of discrimination, the complainant must show that the alleged discriminatory acts are not complete and distinct in themselves. It is imperative that she demonstrates that the alleged acts are related. Absent specific evidence, even repeated denials, when considered in light of the fact that "different individuals acting independently" made them, do not constitute a series of related acts. Lloyd v. WABC-TV, 879 F. Sup. 394, 399-400 (S.D.N.Y. 1995).
The complainant argues that a series of related incidents occurred when she asked the ZBA for an accommodation then corresponded with Rasmussen and then asked the zoning commission for an accommodation. (Complainant's Post hearing brief, p. 40).
Contrary to the complainant's position, these acts do not constitute a related series of discriminatory acts. First, independent, different decision-makers made these decisions. There is no evidence that any decision was made by any member of the Board of Governors; indeed, there is no evidence of who the members of the Board of Governors are. There is no evidence that Rasmussen was a member of the Board of Governors, ZBA or zoning commission. There is no evidence of overlapping membership between the Board of Governors, ZBA or zoning commission.
Second, Rasmussen did, in fact, convey to the zoning commission the complainant's request.
Third, the complainant did not ask the zoning commission for a rule change. The zoning commission understood the complainant to be requesting either a variance or a reversal of the ZBA's decision, which the zoning commission correctly realized it could not grant. Denial of a request by an entity that lacks the authority to approve such request does not constitute a discriminatory act.
Even if the zoning commission had construed the complainant's request to be that for a rule change, a rule change would not have been a dispositive resolution of the complainant's issue. A broad rule by the zoning commission that the zoning regulations were to be interpreted consistent with federal and state disability and fair housing laws would still have necessitated decisions by Rasmussen and/or ZBA that the complainant fell within the category of people to whom this rule applied.

b. Maintenance of a discriminatory policy

Under this exception to the filing requirement, a "continuing-violation exception applies where there is evidence of specific discriminatory practices, such as the repeated use of discriminatory seniority lists or employment tests. Discrete incidents of discrimination that are unrelated to an identifiable policy or practice, on the other hand, will not ordinarily amount to a continuing violation, unless such incidents are specifically related and are allowed to continue unremedied for so long as to amount to a discriminatory policy or practice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997).
Here, the evidence establishes a specific, continuing policy of the ZBA of failing to apply federal and state disability and fair housing laws to zoning restrictions. The ZBA's denial of the complainant's variance was not because the ZBA considered the disability and rejected the attached garage as a reasonable accommodation, in which case the 180-day time limit may have applied to render the complaint untimely. Rather, the ZBA's denial was based on its continuing, and incorrect, policy that the federal and state disability/fair housing laws do not apply to zoning restrictions. (FF 26.)
Further, given this continuing inaccurate policy, it would serve no useful purpose to dismiss the complaint as untimely. Such a dismissal would only result in the complainant filing a new application with the ZBA, another denial by ZBA based on its incorrect belief of disability and fair housing laws, and then another complaint by the complainant to the commission. "The law does not require the performance of a futile act." Luttinger v. Rosen, 164 Conn. 45, 47 (1972).

2. Equitable tolling

The complainant also argues that the doctrine of equitable tolling applies to this case. Equitable tolling arises where bad faith actions on the part of the respondent result in the complainant's ignorance of her cause of action. Commission on Human Rights and Opportunities ex rel. Clements v. Town of Brookfield, CHRO No. 9620571 pp. 11-12 (2000), citing Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 60-61 (2d Cir. 1986); see also Williams v. Commission on Human Rights and Opportunities, 67 Conn. App. 316, 327 (2001) citing Brown v. Employer's Reinsurance Corp., 206 Conn. 668, 674-77 (1988). "Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive…. Bad faith means more than mere negligence: it involves a dishonest purpose." (Citations omitted; internal quotations omitted.) Layne v. Benbow-Robinson, 1998 WL 46675, at *2 (Ruling on a Motion for Summary Judgement, Conn. Super., January 29, 1998).
The evidence does not support a finding of bad faith or dishonest purpose on the part of any of the respondents. There is no credible evidence of animus by any of the respondents toward the complainant personally or toward disabled individuals in general. The ZBA, Rasmussen and the zoning commission all believed the complainant to be seeking a variance. Because traditional zoning law considers only hardship based on the characteristics of the land and not personal hardships, they honestly, although mistakenly, believed that disability/fair housing laws do not supersede zoning law and that personal hardship arising from disability is irrelevant. The ZBA advised the complainant that she could appeal the denial of her application to the Superior Court. (Complainant, Tr. 159; Sweeney, Tr. 198, 205; R. Ex. 3) Even if the ZBA told her that such an appeal would be unsuccessful, there is no evidence of personal animus or that appeals of variance denials are, in fact, usually successful.

C. Failure to reasonably accommodate

As previously discussed, both federal and state laws supersede zoning restrictions by prohibiting discrimination against handicapped persons in the terms, conditions or privileges of housing. A discriminatory act "includes a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises". 42 U.S.C. § 3604(f)(3)(A). A discriminatory act also arises when there is "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". 42 U.S.C. § 3604(f)(3)(B). See also §§ 46a-64c(a)(6)(A), 46a-64c(a)(6)(C)(i), and 46a-64c(a)(6)(C)(ii). Therefore, the ZBA must make reasonable accommodations in its rules, policies, practices or services when such accommodations may be necessary to afford a person equal opportunity to use and enjoy a dwelling.
To establish a prima facie claim of discrimination based upon failure to reasonably accommodate her disability, the complainant must show that (1) she is a person with a 'handicap' as defined under the federal act and/or is a 'disabled' person under the state act; (2) the ZBA knew or should have known of her handicap/disability; (3) reasonable modifications were necessary to afford her full enjoyment of the premises; and (4) the ZBA refused to permit the reasonable modification. Once the complainant establishes her prima facie case, the burden shifts to the respondent to show that the complainant's proposed accommodation is not reasonable because it imposes an "undue financial burden" or requires a "fundamental alteration" of its program. (Internal quotation marks omitted; citations omitted.) Secretary, United States Department of Housing and Urban Development on behalf of Paul C. Abrahamsen v. Twinbrook Village, HUDALJ Nos. 02-00-0256-8, 02-00-0257-8, 02-00-0258-8, pp. 13, 16 (2001) (www.hud.gov/alj/aljhandi.cfm); Commission on Human Rights and Opportunities ex rel. Filshtein v. West Hartford Housing Authority, CHRO No. 0050061, pp. 13-14 (2001).

1.

First, the complainant has established that she is handicapped under federal law and/or disabled under state law. Under federal law, 'handicap' includes an individual who has a physical impairment that substantially limits one or more of her major life activities. 42 U.S.C. § 3602(h)(1). "Walking is a major life activity." (Internal quotation marks omitted; citations omitted.) Secretary, United States Department of Housing and Urban Development on behalf of Daphene Grassi v. Country Manor Apartments, HUDALJ 05-98-1649-8, p.9 (2001) (www.hud.gov/alj/aljhandi.cfm); see also 29 C.F.R. § 1630.2(i). A substantial limitation exists when a person is "significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1)(ii). "The following factors should be considered in determining whether an individual is substantially limited in a major life activity: (i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2).
Under state law, a physically disabled person is "any individual who has any chronic physical handicap, infirmity or impairment, whether congenital or resulting from bodily injury, organic processes or changes or from illness, including, but not limited to, epilepsy, deafness or hearing impairment or reliance on a wheelchair or other remedial appliance or device." General Statutes § 46a-51(15). See also § 1-1f(b). The complainant has a tumor on her spinal cord, irritating the nerve. (FF 13.) Whether because of the tumor or for other reasons, she has a chronic medical condition impairing her ability to walk. This condition will worsen over time. (FF 18.)
The complainant is substantially restricted in her ability to walk. Beginning in 1996 and continuing to date, the complainant began experiencing problems affecting her ability to walk. She has fallen several times, experiencing a couple of falls per year. The nerve endings, particularly in her left leg, give out. She has an impaired ability to climb stairs and uses the elevator at work rather than the stairs. She has difficulty getting in and out of her car. She has difficulty grocery shopping and in carrying her purchases into the house. She has difficulty walking on slippery surfaces and stepping over objects. Her walk is painful and slow. She walks with a wider and weakened gait. She cannot walk long distances. Her condition worsens as the day progresses. She has trouble walking at night, her ankles swell, and she experiences heaviness and dull aching in her legs. Her leg problems are worse in bad weather. The complainant has a state-issued permanent disabled parking permit. (FF 14-17.)
Although in her mid-sixties, the complainant "has the legs of a 90-year-old." (Wellner, Tr. 293.)
Given her medical and physical condition, the complainant established the first element of her prima facie case.

2.

Second, the ZBA was aware of the complainant's disability. (FF 24.) The complainant wrote on her application for a variance that she "I need to be able to access my car both coming and going without risk of injury" and that "I presently have need to use a cane due to a spinal condition." (R. Ex. 8.) Her medical condition was discussed, at least briefly, at the ZBA's hearing. (Complainant, Tr. 68; Sweeney, Tr. 198-99.) However, her medical condition was "probably considered as a personal hardship and that it wasn't a viable item to discuss." (Sweeney, Tr. 207.)

3.

Third, the complainant's proposal for an attached garage is reasonable and necessary. "'[T]he concept of necessity requires at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability.' Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995).
As previously discussed, the complainant is substantially impaired in her ability to walk and her impairment rises to the level of a federal handicap and/or state disability. The attachment of the garage to her house would enhance the complainant's quality of life and ameliorate the problems arising from her handicap/disability. She would have an easier time standing and walking on cement than on asphalt or the bare ground. An attachment would allow her to avoid bad weather when going between her car and house, particularly in winter when her neighbors are not around. She would be able to walk on a level, dry surface. She would also have a shorter distance to walk from the car to the interior of the house. (FF 19.)
The respondents argue that because reasonable alternatives existed in 1998 that did not require a variance, the complainant has created her own hardship through her voluntary acts of not utilizing one of those alternatives and by expanding the size of her porch. Therefore, claim the respondents, the complainant is thereby precluded from relief. I agree that in 1998 the complainant did have alternatives that were presented to her or ascertainable through an interactive dialogue with the ZBA, the zoning commission and Rasmussen that would have reasonably accommodated her condition without requiring a variance. However, the focus of disability and fair housing law is not on what the complainant could have done in 1998, but on what reasonable accommodations her disability requires now.
The respondents also argue that a reasonable alternative exists now that would not require a variance: the complainant could cut doorways into the west wall of the detached garage and the east wall of the house, so that she could pass from one structure to the other. So long as they did not touch the house, the complainant could construct overhangs and protrusions from the roof or side of the garage covering 6 inches of the 8-inch gap and providing protection from inclement weather. (Atty. O'Connell, Tr. 302; Respondents' Brief, pp. 21-22.) First, the respondents' proposal is inadequate. The complainant's stride may not fully cover the 8-inch gap and she would not be fully protected from snowdrifts or cold weather. (Wellner, Tr. 303, 305.) Second, the respondents' proposal to partially enclose 6 inches illustrates that they would suffer no hardship if the entire 8-inch gap were enclosed.
Further, the respondents have not demonstrated that the complainant's proposal would not enhance the quality of her life and ameliorate her disability.

4.

Fourth, the ZBA denied the complainant's application for a variance for an attached garage. (FF 25.) The testimonies of Sweeney and Rasmussen, the arguments of the respondents' attorney (Tr. 129-31) and respondents' post hearing memorandum (pp. 19-21) lead one to the inescapable conclusion that the ZBA did not understand when the complainant applied in 1998 for a variance and, importantly, do not understand now that federal and state disability and fair housing laws supersede the respondents' zoning restrictions. (FF 26.) Given this continuing policy, it is inevitable that the ZBA will deny the complainant's request to attach her current detached garage to her house.

5.

Finally, the ZBA failed to show that the complainant's proposed accommodation is unreasonable; that is, the ZBA failed to show that granting a variance to attach the garage would result in an "undue financial burden" or require a "fundamental alteration" of its program. The ZBA identified no financial or administrative burden to the granting of a variance. Nor would the variance result in a "fundamental alternation" of its program: this limited type of personal hardship would be restricted to that narrow group of people whose disability requires an attached garage. The ZBA identified no public health or safety reasons why the attachment should not be built. The ZBA identified no justification why the same size garage when detached from the house has a 10-foot setback requirement, but when attached to the house requires a 15-foot setback.
The hardship identified by the ZBA was the violation of the regulation itself. (Sweeney, Tr. 209, 215.) However, the law requires "mak[ing] 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". 42 U.S.C. § 3604(f)(3)(B).

D. Damages

"[I]n addressing claims brought under both federal and state housing laws, we are guided by the cases interpreting federal fair housing laws; 42 U.S.C. §§ 3601 through 3631; despite differences between the state and federal statutes. In construing federal fair housing laws, the federal courts have adopted the evidentiary requirements set forth by the United State Supreme Court in federal employment cases. Therefore, we may look to these employment discrimination cases for the appropriate standard applicable to [the complainant's] claim." (Internal quotation marks omitted; internal citations omitted.) Avalonbay Communities, Inc., 256 Conn. 591. In federal and state employment cases, the parties are required to engage in a good faith interactive dialogue and to consider alternative reasonable accommodations. DeMello v. Connecticut Commission on Human Rights and Opportunities, 2000 WL 38477, at *3 (Conn. Super. 2000); Colter v. Yale University, 2000 WL 559023, at *3, n. 3 (D. Conn. 2000); Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 727 (8th Cir. 1999) cert. denied 529 U.S. 1019 (2000). While a disabled person is entitled to a reasonable accommodation, she is not necessarily entitled to the accommodation of her choice. Ezikovich v Commission on Human Rights and Opportunities, 57 Conn. App. 767, 775 (2000) cert. denied, 253 Conn. 925 (2000); Kiel v. Select Artificials, Inc. 169 F.3d 1131, 1137 (8th Cir. 1999). In this case, the complainant refused to engage in any dialogue with the respondents and refused to timely consider alternatives that would have allowed her to build an attached garage without requiring a variance.
Notwithstanding the specious comment one ZBA member may have made that the complaint could move her house (Complainant, Tr. 87), between the denial of the complainant's variance in 1998 and her construction of the detached garage in 2000, the ZBA, the zoning commission and Rasmussen offered the complainant reasonable alternatives that would have accommodated her disability without requiring a variance. (FF 27, 35.) The complainant refused to engage in a meaningful interactive dialogue with the ZBA, the zoning commission or Rasmussen on alternative locations for the attached garage that would have accommodated her disability without requiring a variance. Her refusal to consider alternative locations was based not on medical or safety concerns, but on aesthetic concerns regarding her yard. (FF 28, 35.)
The complainant clearly contemplated an attached garage as early as April 1998 when, while doubling the size of her porch, she discussed this very issue with Mr. Resnicky, the Association's ZEO at that time. (FF 21.) The alterations made to her application for the expanded porch also imply that an attached garage was under consideration. (R. Ex. 6.)
"Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion." (Internal quotation marks omitted; citations omitted.) Lambert v. Donahue, 69 Conn. App. 146, 150 (2002). This is an unusual fact pattern in that the complainant was aware of, or through good faith interactive dialogue could have ascertained, reasonable alternatives for the placement of her attached garage prior to the construction of her detached garage. Her emotional distress and attorneys fees result from her refusal to engage in good faith interactive dialogue and from deliberately and knowingly ignoring the advice of the ZBA, the zoning commission and Rasmussen. Therefore, the complainant receives no monetary awards for emotional distress and attorney's fees.

VII. Conclusions of Law

VIII. Order

_______________________
Hon. Jon P. FitzGerald
Presiding Human Rights Referee

C:
Ms. Carol Ward
Atty. Robert A. Richardson
Black Point Beach Association, Inc.
Black Point Beach Board of Governors
Black Point Beach Zoning Board of Appeals
Black Point Beach Zoning Commission
Atty. Edward B. O'Connell
Atty. Regina M. Hopkins