monthly fee. To waive the fee for her, under this view, would constitute a waiver of a generally applicable fee. The plaintiffs envision the accommodation as the landlord's reserving for Hubbard a previously unreserved parking space. The defendants view the accommodation as creating for Hubbard a new reserved space significantly closer to her apartment than any of the other reserved spaces.
These contrasting approaches pose the following question: Should Hubbard's reserved space close to her apartment building be free because all the spaces close to the building are free, or should the space require payment of a monthly fee because all reserved spaces do? The answer rests upon an analysis of what would provide Hubbard an opportunity to use and enjoy her dwelling equal to that of other tenants, which is the purpose of a reasonable accommodation under the Act.
Other Sleepy Hollow tenants, who are not disabled and are therefore able to walk long distances more easily than Hubbard, need not pay a monthly fee in order to park within comfortable walking distance of their apartment.
Even without paying for a reserved space, other Sleepy Hollow tenants are able to walk between their car and their apartment without significant pain or inconvenience. Hubbard, on account of her disability, did not enjoy such access to her apartment. If the paucity of available unreserved parking near her apartment meant that Hubbard, due to her handicap, experienced greater discomfort and difficulty than other tenants in going to and from her car, then Samson should have accommodated her disability by providing her, without charge, a parking space close to her building.
This determination does not mean that Samson was required to designate a particular space for Hubbard's sole use. The Act only requires that Hubbard, as a practical matter, be able to park sufficiently near her apartment so as to equalize her opportunity to use and enjoy her dwelling. Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 896 (7th Cir. 1996).
Having identified an accommodation that would have equalized Hubbard's opportunity to use and enjoy her dwelling, the question then becomes whether such an accommodation would unduly burden the landlord or inappropriately advantage Hubbard relative to other tenants. It is true that Samson has maintained a policy under which holders of reserved parking spaces pay a monthly fee. But granting Hubbard the use of a space near her apartment without charge would not diminish the number of reserved spaces available for rental or decrease Samson's income from these spaces.
Thus, Samson would not be burdened by designating a space for Hubbard's use without charge.
Samson's contention that Hubbard would be unfairly benefitted relative to the other tenants by reserving a space near her apartment for her sole use, without charge, is only correct if one ignores the significance of Hubbard's handicap, which is what necessitates the reasonable accommodation.
In light of Hubbard's handicap, reserving a space for her may be the only way to assure her the same access to her apartment that other tenants take for granted. Thus, it may be necessary to reserve a space for Hubbard in order to equalize her access to her dwelling and thereby provide her the same opportunity to use and enjoy her dwelling that other residents enjoy.
Defendants advance several other arguments. First, defendants contend that they reasonably accommodated Hubbard's handicap by renting her an apartment at more than $ 100 less than the legally permitted rent for that apartment. However, there is no evidence that the amount of Hubbard's monthly rent reflected any consideration of her physical condition.
Second, defendants argue that they should not be held liable for not making a parking space available to Hubbard prior to December 2, 1995 because they were not convinced that Hubbard was handicapped within the meaning of the Fair Housing Act. Defendants note that, although Hubbard walked with a cane, she seemed to do so without great difficulty. Although Hubbard must ultimately prove that she was handicapped in order to prevail, the defendants, by stipulating that Hubbard is handicapped, have waived their right to challenge, on this motion, whether Hubbard was disabled prior to December 2, 1995.
Additionally, at no time prior to this lawsuit did defendants question Hubbard's handicapped status or ask for any proof of her disability, as landlords may be required to do if they doubt a tenant's claim of being handicapped. "If a landlord is skeptical of a tenant's alleged disability...it is incumbent upon the landlord to request documentation or open a dialogue." Jankowski Lee, 91 F.3d at 895. Indeed, Hubbard likely could have provided such documentation. During the entire time of her residency at Sleepy Hollow, she displayed in her car a New York state handicapped tag that entitled her to park in zones designated "handicapped parking." That Hubbard was issued a handicapped sticker created a presumption, and placed defendants on notice, that Hubbard was entitled to the protections afforded disabled individuals, including the Act's prohibitions on discrimination on account of disability.
Third, defendants argue that because Hubbard could afford to pay the monthly fee for a reserved parking space, they should not be required to provide a space for free. Whether Hubbard could afford to pay the fee is irrelevant because the contemplated accommodation does not require the waiver of a generally applicable fee. A tenant's ability to pay should only be considered when the contemplated accommodation involves a waiver of a generally applicable fee. See, e.g., California Mobile Home Park I 29 F.3d at 1418 (in the case of a generally applicable fee, putting forth a balancing test that considers, among other things, the plaintiff's ability to pay); Samuelson v. Mid-Atlantic Realty Co., 947 F. Supp. 756, 761 (D. Del. 1996) (same). Because Sleepy Hollow tenants are not required to pay a monthly fee in order to park in reasonable proximity to their apartments, Hubbard's ability to pay is immaterial.
Finally, defendants note, correctly, that if they were required to supply free, reserved parking for Hubbard, they might be similarly required to provide parking near the apartment of every handicapped tenant in the complex. If the current allocation of parking spaces disadvantages handicapped tenants, then Samson might indeed be required to allocate parking so as to assure handicapped tenants an opportunity equal to that of their non-handicapped neighbors to use and enjoy their dwelling.
Although the defendants did not accede to Hubbard's request for a free parking space solely for her use, they did offer to designate three formerly unreserved parking spaces throughout the complex as "handicapped." Whether this option would have met defendants' legal obligation to accommodate reasonably Hubbard's disability turns on whether at least one of the spaces would have been sufficiently close to Hubbard's apartment and whether the space would, in fact, have been available for Hubbard's regular use. Only if the answers to both of these questions are "yes" would the handicapped parking proposal have satisfied the defendants' obligation to reasonably accommodate Hubbard's handicap.
Although the parties agreed that the space closest to Hubbard's apartment was certainly close enough to afford her an opportunity equal to that of other tenants to use and enjoy her dwelling, the parties apparently did not agree how close was "close enough." Of the three handicapped spaces proposed by the defendants, the one closest to Hubbard's apartment was, according to the defendants, approximately 30 yards from her unit. Hubbard apparently deemed that space too far to allow her reasonable access to her apartment. How close a space would be required depends in part, of course, on the severity of the plaintiff's handicap. Assuming that at least one space was "close enough," the space might nonetheless have been insufficient to constitute a reasonable accommodation if the demand for the space prevented Hubbard, as a practical matter, from regularly parking there. Defendants would have then been required to designate enough additional handicapped spaces for Hubbard to be assured of the availability of a space near her apartment.
In sum, whether the defendants offered to create, for Hubbard's benefit, enough handicapped parking sufficiently near her apartment to afford her an equal opportunity to use and enjoy her dwelling is a factual issue that cannot be resolved on this motion for summary judgment.
In light of defendants' stipulation regarding Hubbard's handicap and the lack of evidence that defendants made any offer of accommodation prior to December 2, 1995, this Court concludes that defendants, during the period from July 18, 1995 to December 2, 1995, discriminated against Hubbard on the basis of handicap in violation of the Act. During this period, the defendants did not offer Hubbard, with or without charge, any parking space near her apartment. Defendants' proposal to designate a fee paid space for Hubbard also did not constitute a reasonable accommodation. Thus, the defendants violated Hubbard's rights under the Act at least until they offered to create three handicapped parking spaces throughout Sleepy Hollow.
For the reasons stated, the motions of the United States and Susan L. Hubbard for summary judgment on the issue of liability are granted in part, as to the period from July 18, 1995 to December 2, 1995. The motions of the United States and Hubbard are otherwise denied. The defendants' motion for summary judgment is denied.
Barrington D. Parker, Jr.
Dated: White Plains, New York
February 5, 1998