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Commonwealth ex rel. Fair Housing Bd. v. Windsor Plaza Condominium Ass'n, Inc.

Supreme Court of Virginia

December 31, 2014


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[289 Va. 42] PRESENT: All the Justices


In these consolidated appeals, we consider various issues arising under the Virginia Fair Housing Law, Code § 36-96.1 et seq. (VFHL), and the Federal Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601 et seq. (FHAA).

[289 Va. 43] Background

On March 4, 2009, Michael Fishel (Fishel) filed complaints with the Virginia Fair Housing Board (FHB) and the United States Department of Housing and Urban Development (HUD), alleging that Windsor Plaza Condominium Association (Windsor Plaza) had discriminated against him in violation of the VFHL and the FHAA. HUD transferred Fishel's complaint to the FHB.

On May 28, 2010, the FHB, after an investigation, determined that reasonable cause existed to believe that Windsor Plaza had engaged in a " discriminatory housing practice . . . in violation of . . . Code § 36-96.3(B)(ii)." Pursuant to Code § 36-96.14, the FHB referred the charge to the Attorney General on June 1, 2010.

On June 30, 2010, the Office of the Attorney General, on behalf of the Commonwealth, filed a complaint against Windsor Plaza in the Circuit Court of Arlington County. The complaint alleged that Windsor Plaza had violated Code § 36-96.3(B)(ii) by failing " to make reasonable accommodations in rules, practices, policies, or services [that were] necessary to afford [Fishel] equal opportunity to use and enjoy [his] dwelling."

On November 23, 2010, Fishel and his wife Eleanor (collectively " Fishels" ) moved to intervene in the Commonwealth's lawsuit pursuant to Code § 36-96.16(B). They also lodged a " Complaint in Intervention" with the court on the same date. In their Complaint in Intervention, the Fishels alleged, as had the Commonwealth, that Windsor Plaza had violated the VFHL by refusing their request for a reasonable accommodation.

The Fishels also alleged additional causes of action. They alleged that Windsor Plaza had discriminated against them in violation of Code § § 36-96.3(A)(8) and (9), and 42 U.S.C. § § 3604(f)(1), (2) and (3)(B).

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The circuit court granted the Fishels' motion to intervene and deemed their Complaint in Intervention filed on January 28, 2011.

Windsor Plaza filed a plea in bar to the Fishels' intervening complaint, arguing that the Fishels' new state and federal fair housing claims were barred by the applicable statutes of limitations.

On April 5, 2012, pursuant to a court order granting the Commonwealth leave to join " as additional defendants to this [289 Va. 44] action the . . . persons vested with the right to use the four limited common element parking spaces in the Windsor Plaza Condominium residential parking garages that are labeled 'HC' [i.e., handicapped] on the Windsor Plaza site plan and any person that has a security interest in those four 'HC' parking spaces," the Commonwealth filed a second amended complaint. It added eight individuals who owned interests in the four parking spaces as defendants (collectively " individual parking space owners" ).[1] Not only did the Commonwealth add these individuals as owners of the controverted parking spaces, it also alleged that the individual parking space owners had violated the VFHL by parking in the disabled parking spaces that had been deeded to them with the purchase of their condominiums in a manner inconsistent with the parking spaces' designations on the site plan. The complaint stated, " This non-conforming use contributes to the Defendant Association's refusal to make a reasonable accommodation as requested by the Fishels."

Lois Ann Rossi (Rossi), one of the individual parking space owners, filed a plea in bar to the Commonwealth's second amended complaint, asserting that the statute of limitations in Code § 36-96.16(A) barred the Commonwealth's claim against her and the other individual parking space owners.

The circuit court scheduled a hearing to address Windsor Plaza's special plea concerning the Fishels' complaint and Rossi's special plea concerning the Commonwealth's second amended complaint. After a hearing on the pleas in bar, the circuit court sustained Windsor Plaza's plea in bar to the Fishels' complaint. It also sustained Rossi's plea in bar and dismissed the Commonwealth's claims against all of the individual parking space owners as being barred by the applicable statute of limitations.

On March 4, 2013, the parties proceeded to trial on the claim that Windsor Plaza violated Code § 36-96.3(B)(ii) by failing to make reasonable accommodations in rules, practices, policies or services that were necessary to afford Fishel equal opportunity to enjoy his dwelling. At the close of the Commonwealth's [289 Va. 45] case-in-chief, Windsor Plaza moved to strike the Commonwealth's evidence and for summary judgment. The circuit court granted the motion.

At a later hearing to consider Windsor Plaza's requests for attorney's fees, the circuit court determined that sovereign immunity did not bar Windsor Plaza's request for attorney's fees and costs against the Commonwealth pursuant to Code § 36-96.16(D). Nevertheless, the court exercised its discretion and declined to award Windsor Plaza attorney's fees against the Commonwealth. The court also declined to award Windsor Plaza attorney's fees against the Fishels.

The Commonwealth and the Fishels filed separate appeals, which are both addressed in this opinion. Windsor Plaza assigns cross errors to the circuit court's denial of its request for the award of attorney's fees against the Commonwealth and the Fishels.


Windsor Plaza Condominium is located in Arlington County and is comprised of two condominium buildings, each with underground parking garages. When the condominium was first built, parking spaces in these garages were general common elements.[2] The site plan for the buildings notes four parking spaces for use by disabled persons.

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Those parking spaces were designated as " HC" on the site plan.

In 1995, the developer of Windsor Plaza Condominium executed an " Amendment to Condominium Instruments" document. The amendment allowed the developer to assign the previously general common element parking spaces as limited common element[3] parking spaces. Pursuant to the amendment, the developer deeded every parking space in the condominium's underground garages, including the four parking spaces designated for use by disabled persons (hereinafter " disabled parking spaces" ), to individual unit owners " as a limited common element for the exclusive use of the unit owner of such condominium unit."

[289 Va. 46] Fishel suffers from " severe osteoarthritis" and must use a wheelchair. In July 2007, the Fishels purchased a condominium unit in the Taylor Street Building of Windsor Plaza Condominium. The Fishels received a " resale package," which they reviewed carefully for two days before purchasing their unit. In the resale package, a diagram of the parking garages showed four disabled parking spaces. The documents in the resale package also indicated that garage parking spaces at the condominium were limited common elements and that the developer had already assigned all of the parking spaces to individual unit owners.

Before buying their condominium unit, the Fishels visited the site and looked at the unit and underground parking garage. The Fishels saw the parking space that would be purchased with their condominium. They testified at trial that they knew the space was not a disabled parking space and that " [it] wasn't going to meet [their] needs." The Fishels did not inquire about the availability of disabled parking spaces in the garage before purchasing their condominium unit.

Soon after purchasing their condominium unit, the Fishels contacted Joseph Tilton (Tilton), Windsor Plaza's building manager, and informed him that Fishel was unable to park his van in their parking space. Tilton advised the Fishels to park in one of the disabled parking spaces, which they did " a couple times," but the Fishels were soon informed that they could not park in that space because it belonged to another condominium unit owner.

On July 30, 2007, the Fishels emailed Tilton, asking for " a larger parking space" in a better location. Windsor Plaza's Board of Directors (the Board) considered their request at a board meeting, and Tilton relayed the Board's response to the Fishels by email on August 23, 2007:

The Board of Directors reviewed your request for a larger parking space at last night's meeting. As all existing garage spaces are individually owned by unit owners, assigning a different parking space to your residence is beyond the authority of the Board. This does not preclude you from advertising your interest in trading parking spaces with another owner. If you would like to draft a flyer announcing your need for a larger space, we would be happy to post copies on both [289 Va. 47] bulletin boards. Such a notice may facilitate an exchange of spaces, either as a casual agreement or as a permanent reassignment, based on the preferences of all parties involved.
Please contact us should you have any further concerns.

The Fishels responded to Tilton's August 23, 2007 email and asserted Fishel's " right . . . to park in a handicapped-designated space," but they indicated that they were reluctant to " go this route." The Fishels' email concluded, " Please ask the Board to review this issue again in an expedited manner. We need a parking space that we can actually use."

The next email from Tilton, dated September 12, 2007, related that the Board had met again and that " [a] copy of your request is being sent to the Condominium's counsel so he may instruct us in how to best accommodate your needs."

During the following months, the Fishels inquired periodically about the status of their

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request. On May 7, 2008, Windsor Plaza's attorney, Raymond Diaz (Diaz), informed the Fishels by letter that Windsor Plaza could not force any of the individual parking space owners to trade with them. Diaz asserted that " it has proven impossible for the Association to persuade the owner of the larger space to conclude an arrangement permitting you the use of the larger garage parking space."

In the same letter, Diaz offered to help the Fishels secure approval from the county to reserve a parking space on the street outside their condominium building. The Fishels rejected this proposal because in order to park on the street, Fishel would have to exit his car into traffic. Moreover, the curb was too steep, and the nearest entrance door was not handicap-accessible.

Diaz wrote another letter dated August 10, 2009, informing the Fishels that the owners of one of the disabled parking spaces were willing to enter into a licensing agreement that would allow the Fishels to use the disabled parking space. The Fishels did not accept this offer because, in the proposed agreement, the parking space owners reserved a right to reclaim the disabled parking space if they sold their condominium or if at some point they had a tenant who needed the disabled parking space.

[289 Va. 48] On March 4, 2009, the Fishels filed complaints with the FHB and HUD. Thereafter, an investigator from the FHB visited the condominium building. Fishel testified that while he was in the garage with the investigator, Tilton walked by, and Fishel raised with Tilton the idea of converting a bicycle storage space, located in the garage, into an accessible parking space. Tilton expressed concern that doing so would be too expensive. Fishel testified that he offered to pay for the " disabled logo and everything." The ...

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