By ERIC A. HOWALD
Of the Keizertimes
For the second time in six years, the McNary Estates Home Owners Association (HOA) was found to have discriminated against a disabled resident – this time for refusing to accommodate parking of a RV deemed medically necessary for a woman suffering from a variety of ailments.
U.S. District Judge Ann Aiken issued a summary judgment on the facts of the case for the plaintiff, Khrizma Kuhn, and her parents, Renee and Gary. The lawsuit named McNary Estates HOA and Teresa Girod, president at the time of the conflict, as defendants.
“The judge found absolute liability against the HOA and the individual defendant. The only issue left to determine is damages,” said Dennis Steinman, the attorney representing the Kuhn family.
The next stage in the process is to convene a jury to determine damages, but Steinman previously said many summary judgment cases are settled prior to reaching that stage.
If the question of damages were to go to the jury, Renee and Gary would be likely to testify about their experience, Steinman said. The jury would also be told that a judge had already found the HOA and Girod to be in violation of the federal and state law and that the HOA had previously been found in violation of similar standards in a 2011 case.
In the 2011 judgment, the HOA was determined to have violated the FHA by not allowing a privacy fence to prevent an 11-year-old developmentally disabled boy from wandering off the property of his mother’s boyfriend.
Lacking options, family leaves
In April 2015, the Kuhn family requested a waiver from the HOA to park an RV in their driveway as an accommodation for their daughter, Khrizma. Khrizma suffers from Down syndrome, autism and other maladies that require access to a bathroom and a shower even on short trips.
Parking the RV in the family’s driveway without a waiver would have violated McNary Estates HOA rules.
The Kuhns presented the HOA board with letters from two doctors citing the medical necessity, but the request was denied and the family later met with hostility from neighbors.
When one neighbor claimed her view of the street was obstructed as she tried to pull out of her driveway, Renee purchased a parabolic mirror for her to install at the edge of her property. The neighbor declined to use it.
Another neighbor allegedly shoved Gary twice outside his home as the situation unraveled. Yet another began sitting outside her home monitoring the family’s activity.
“She had a chair and a notepad and did it for days,” Gary said in an interview last year. “She was trying to log our behavior.”
The HOA did suggest alternatives such as parking the RV offsite or a van with a chemical toilet, but neither fully addressed the situation. The van would have lacked a shower. Parking it offsite would have left Renee without transportation as the Kuhns had to sell one of their vehicles to pay for the RV. Gary used the family’s other car for commuting to and from work.
With no resolution in sight, the family sold their home and moved to Woodburn in the fall of 2015.
In November 2016, Girod resigned as the HOA president to take on a paid role as interim McNary Estates general manager.
“As a longtime resident of McNary Estates, she loves our community and is well versed with our governing documents. Teresa’s qualifications make her the perfect candidate and I feel fortunate that she has agreed to accept this position,” wrote new president Kathie Stevens in a news item posted to the McNary Estates HOA website.
Stevens was the neighbor who allegedly sat in her garage and logged family activity according to the original complaint.
In making her summary judgment decision, Aiken cited standards of the FHA and reasonableness of the accommodation request as reasons for her decision against the HOA and Girod.
Aiken found that the defendants violated FHA standards because refusing to accommodate the RV negatively impacted the Kuhn family’s “use and enjoyment” of their home.
The HOA board originally contended that accommodating the RV impacted the family’s travels, not housing.
“Any reasonable factfinder looking at the summary judgment record would conclude that if the RV were parked offsite, Khrizma would face ‘injury or pain’ in accessing the mode of transportation deemed best for her by her parents and her doctors,” Aiken wrote.
Representatives of the HOA suggested in filings with the court that the Kuhns might have expanded their garage or purchased a smaller RV. However, Aiken wrote that presenting those alternatives – which would have required their own variances from HOA policy – after-the-fact was a matter of too-little-too-late.
“Under basic principles of fairness and waiver, (the defendants) are not now permitted to avoid liability by faulting plaintiffs for failing to come up with those alternative accommodations,” she wrote.
As to the reasonableness of the request, Aiken found that the Kuhns had attempted to overcome safety concerns with the purchase of the parabolic mirror.
“Plaintiffs submitted uncontradicted evidence that their house was on a short, dead-end street with little traffic. The burden therefore shifts to defendants to show that the requested accommodation was not reasonable under the circumstances,” Aiken wrote. “(The) defendants’ argument that parabolic mirrors are themselves a safety concern due to sun glare is speculative and unsupported by any evidence in the record.”
A landmark decision
While the decision in the case affects the Kuhn family, the HOA and Girod most immediately, Steinman, the family attorney, said the potential impact is far-reaching.
“While this decision is specific, it will set in stone for Oregon that the ability to park a vehicle in front of your home is integral to your enjoyment of your home,” Steinman said.
On an even grander scale, the decision impacts who can decide what an appropriate accommodation is for someone with a disability.
“It’s like having someone choose to wear contacts and then someone who wears glasses coming along and telling them they made the wrong choice and will have to change,” Steinman said. “In this case, the defendants were trying to impose their decision, but the court has decided that it’s the disabled person’s voice that matters most. A landlord or an HOA can make a suggestion, but it is the disabled person who gets to decide what is appropriate.”