ROBERT SHEARN, III v. VICTORIANA CONDOMINIUM ASSOCIATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1327-10T2

ROBERT SHEARN, III,

Plaintiff-Appellant,

v.

VICTORIANA CONDOMINIUM

ASSOCIATION & WENTWORTH

PROPERTY MANAGEMENT,

Defendants-Respondents.

_________________________________

November 23, 2011

 

Submitted October 17, 2011 - Decided

 

Before Judges Sabatino and Ashrafi.

 

On appeal from the Division of Civil Rights, Docket No. HD03HW-61361.

 

Tobolsky Law, attorneys for appellant (Robert Shearn, III, on the pro se brief).

 

Thomas Paschos & Associates, P.C., attorneys for respondents Victoriana Condominium Association & Wentworth Property Management (Thomas Paschos and June D. MacCarthy, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent Division of Civil Rights (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Charles S. Cohen, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

This appeal arises out of a housing discrimination complaint filed with the Division of Civil Rights ("DCR" or "the Division") by appellant, Robert Shearn III, against respondents, Victoriana Condominium Association ("the Association"), and Wentworth Property Management ("Wentworth"). Appellant claimed that respondents had illegally refused to grant him a disability accommodation to allow him to resume parking his car in the lot of the condominium complex where he is a unit owner. Respondents had revoked appellant's parking privileges because he was substantially in arrears on his monthly assessment fees.

Following an investigation requested by appellant, the Director of the DCR found no probable cause that respondents had acted toward appellant in a discriminatory manner. This appeal of the DCR's final agency decision ensued. We affirm.

I.

The record presents the following pertinent facts and chronology of events.

Appellant owns a condominium in the sixty-five-unit Victoriana Estate Condominiums in Voorhees. Respondent Association is the homeowners association for the complex, and respondent Wentworth provides the Association with property management services.

The Association's Bylaws and its Rules and Regulations delineate the unit owners' responsibility to pay association fees, and govern the use of common areas. The Rules and Regulations provide that "[a]ll Association fees are due on the first of each month." In addition, the Bylaws state that "[t]he membership rights and voting rights of any unit owner may be suspended by action of the Board during the period when such unit owner's common expense assessments remain unpaid[.]" Furthermore, the Rules and Regulations state that "[t]he Board shall also have the power to impose punitive damage for repeated violations of the same Rules and Regulations on a case-by-case basis."

Appellant purchased his condominium in 1987. As of the time that appellant filed his complaint in this matter in 2010, the monthly assessment fee for his unit was $230, consisting of a $157 association fee and a $73 maintenance fee.

Appellant's Failure to Pay Monthly Assessment Fees Appellant consistently had paid the monthly assessment fee to the Association until 2008. From November 2008 through January 2009, appellant failed to make monthly payments, and as of January 22, 2009, he owed the Association $726.17. Appellant resumed making payments from February 2009 through April 2009, but he again failed to make payments from May 2009 through July 2009.

On June 30, 2009, appellant was informed that he owed the Association $1,186.28. Consequently, respondents filed a notice of lien against appellant on July 7, 2009 in the amount of $1,355 for unpaid assessment fees, late fees, and legal fees. Despite the lien, appellant again did not make payments in September 2009, and from November 2009 through March 2010.

In January 2010, the Association filed a collection action against appellant for $5,418.59 in the Special Civil Part in Camden County. The amount included unpaid assessment fees, accelerated assessment fees, late fees, and legal fees. On April 12, 2010, the court awarded the Association a judgment in the full amount demanded.

The Condominium Parking Lot Ban

Meanwhile, in the spring of 2009, Wentworth's property manager, Barbara Hummer, informed appellant that he was no longer permitted to park in the Association parking lot, because he was in arrears for his failure to pay the monthly assessment fee. Hummer told the Division's investigator that she had recommended to the Association that it restrict the use of common areas including the parking lot by all unit owners who were in arrears. As determined by the Division's investigator, "[d]uring the pendency of the investigation, [r]espondents submitted documentation which indicated that [appellant] was one of [twenty-two] owners whose use of the parking lot was restricted due to unpaid fees."

After speaking with Hummer, appellant attempted to park his vehicle in various locations, including the visitor parking spots at the complex, and street parking outside the complex. Appellant eventually began parking his car across the street from his unit in an off-site parking lot. The off-site lot was estimated to be about two hundred to four hundred feet from appellant's condominium.1

In the fall of 2009, appellant informed Hummer that he was disabled, and asked her for permission to resume parking in the Association's parking lot. Hummer requested that appellant provide medical documentation concerning his disability. On December 16, 2009, appellant sent the Association a letter asserting that he was disabled. Appellant attached to that letter a copy of a notice from the Social Security Administration ("SSA"), stating that the SSA considered him disabled under its criteria.2 Additionally, appellant attached a copy of his identification as a disabled driver issued by the New Jersey Motor Vehicle Commission ("MVC"). However, appellant did not provide a physician's note to respondents until much later, in May 2010.

While the dispute was pending, the Association informed appellant on numerous occasions that he would be permitted to park again in the condominium lot, provided he agreed to a payment plan for his arrears. As the Division's investigation report noted:

[a]t various times during the investigation of the instant complaint, [r]espondents asserted that if [appellant] agreed to make a payment of $280 per month, which would represent his current $230 assessment fee and a $50 payment toward his arrearage, they would take no action to collect the judgment, and would allow him to park on the property.

 

Appellant apparently declined the payment plan offer.

According to his physician, David V. Condoluci, D.O., appellant has epilepsy, and "another medical condition which causes chronic neuropathy in his legs." Dr. Condoluci has indicated that appellant "should not walk more than 150 feet." In a note from Dr. Condoluci to respondents, Dr. Condoluci stated that appellant "is a patient under my care for medical treatment. He has qualified for a special license plate for a person with a disability. It would be important for him to have available parking near his apartment[.]"

It is unclear from our record exactly when appellant stopped working due to his medical condition. According to appellant's statement in a document entitled "Summary of What Happened," he stopped working at an unspecified time in 2009. However, respondents state in their brief that "at some point, believed to be prior to 2009, [appellant] became unemployed."

Appellant's Discrimination Complaint and the Division's Investigation

On February 9, 2010, appellant filed a housing discrimination complaint with the United States Department of Housing and Urban Development ("HUD") against respondents. Treating the complaint as a local matter, HUD referred the dispute to the Division on March 11, 2010.

On March 30, 2010, appellant filed a complaint with the DCR against respondents, alleging that respondents had denied his request for a reasonable accommodation for his disability in violation of the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, specifically N.J.S.A. 10:5-12g.3

At the conclusion of his probe into the relevant facts, the Division's investigator found that "[t]he investigation did not substantiate [appellant's] claim that [r]espondents refused his request for reasonable accommodation for his disability." The investigator concluded that "[t]here was no dispute that [appellant] was in arrears in his assessment fees and as such was not allowed to enjoy the common elements which included use of the Association's parking lot." Additionally, the investigator noted that appellant had not notified respondents of his disability until December 2009 months after his parking privileges had already been suspended for non-payment and that he did not provide respondents with a physician's note until May 2010.4

Adopting the investigator's report, the DCR Director issued a finding of no probable cause on October 5, 2010. Appellant now contests this final agency decision on appeal, arguing that the Director abused his discretion by finding no probable cause.

II.

The Legislature created the Division to administer and enforce the State's civil rights laws. See N.J.S.A. 10:5-6. The Division has recognized authority and experience in investigating and determining the presence or absence of violations of our State's anti-discrimination statutes. See, e.g., Hermann v. Fairleigh Dickinson Univ., 183 N.J. Super. 500, 503-05 (App. Div.), certif. denied, 91 N.J. 573 (1982); Sprague v. Glassboro State Coll., 161 N.J. Super. 218, 225-26 (App. Div. 1978). The agency's delegated functions include determining if there is probable cause strong enough "to warrant a cautious person in the belief that the [anti-discrimination law] . . . has been violated." N.J.A.C. 13:4-10.2(b).

As the administrative agency charged with the enforcement of New Jersey's anti-discrimination laws, see N.J.S.A. 10:5-6, the Division has long-recognized expertise to resolve disputes within its statutory purview. See Balsley v. N. Hunterdon Reg'l Sch. Dist. Bd. of Educ., 117 N.J. 434, 441 (1990) (noting the "extensive remedial powers" of the Division Director); Terry v. Mercer Cnty. Bd. of Chosen Freeholders, 86 N.J. 141, 157 (1981) (noting the "unique discretion and expertise" of the Division Director to effectuate the policies underlying the LAD); Lige v. Town of Montclair, 134 N.J. Super. 277, 280-81 (App. Div. 1975) (noting the "broad powers" of the Division to carry out its legislative mandates), aff'd, 72 N.J. 5 (1976); Evans v. Ross, 57 N.J. Super. 223 (App. Div.) (liberally construing the statutory authority of the Division's predecessor agency, the Division Against Discrimination), certif. denied, 31 N.J. 292 (1959).

After the Division conducts an investigation, the Director must determine whether probable cause of discriminatory conduct exists. N.J.A.C. 13:4-10.2. If the Director finds such probable cause, and conciliation does not eliminate the alleged discrimination or the Director determines conciliation would not be feasible, then the Director shall order a hearing. N.J.A.C. 13:4-11.1. Following such a hearing, if the Director concludes that discrimination occurred, then the Director has several remedial options at his or her disposal, including the issuance of a cease-and-desist order, N.J.S.A. 10:5-17; an award of treble damages, ibid.; counsel fees, N.J.S.A. 10:5-27.1; and statutory penalties, N.J.S.A. 10:5-14.1a.

We must accord the Division considerable deference in reviewing its investigatory determinations. In general, an administrative agency's decision "will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

As the Supreme Court noted in Herrmann, "[t]hree channels of inquiry inform the appellate review function." Id. at 28. These are:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.

Because appellant contests the Director's finding of no probable cause, this court must decide "whether the determination of the Director that no probable cause exists 'for crediting the allegations of the complaint' constitutes an abuse of discretion[.]" Sprague, supra, 161 N.J. Super. at 224 (citation omitted in original). "Though an independent de novo examination of the record might lead the reviewing court to an opposite conclusion, the court's obligation is to examine the record in order to determine whether the evidence and the reasonable inferences to be drawn from it could reasonably support the decision." Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 501 (1982). "Although not defined in the Law against Discrimination, in the analogous field of civil rights 'probable cause' has been defined as a 'reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated.'" Sprague, supra, 161 N.J. Super. at 224-25 (quoting Barnes v. Goldberg, 283 N.Y.S.2d 347, 352 (Sup. Ct. 1966)).

The applicable laws in this case include the LAD and regulations promulgated under that statute. "It is well-established that the LAD is intended to be New Jersey's remedy for unacceptable discrimination and is to be construed liberally." Franek v. Tomahawk Lake Resort, 333 N.J. Super. 206, 217 (App. Div.), certif. denied, 166 N.J. 606 (2000). "Among its other objectives, the LAD is intended to insure that handicapped persons will have 'full and equal access to society, limited only by physical limitations they cannot overcome.'" Ibid. (quoting D.I.A.L., Inc. v. N.J. Dep't of Cmty. Affairs, 254 N.J. Super. 426, 439 (App. Div. 1992)).

The LAD prescribes that individuals may not be discriminated against based on their disability. Specifically, the LAD provides that "[a]ll persons shall have the opportunity . . . to obtain all the accommodations, advantages, facilities, and privileges of any . . . real property without discrimination because of . . . disability . . . subject only to conditions and limitations applicable alike to all persons." N.J.S.A. 10:5-4. Additionally, the LAD provides that:

It shall be . . . an unlawful discrimination:

 

* * *

 

[f]or any person, including but not limited to, any owner, lessee, sublessee, assignee or managing agent

 

* * *

 

[t]o discriminate against any person or group of persons because of . . . disability . . . in the terms, conditions or privileges of the sale, rental or lease of any real property or part or portion thereof or in the furnishing of facilities or services in connection therewith[.]

 

[N.J.S.A. 10:5-12g.]

 

Furthermore, a regulation promulgated by the Division pursuant to the LAD states that "[i]t is unlawful for any person to . . . [r]efuse to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling." N.J.A.C. 13:13-3.4(f). However, "a duty to provide a reasonable accommodation for a resident with a disability does not necessarily entail the obligation to do everything possible to accommodate such a person." Estate of Nicolas v. Ocean Plaza Condo. Ass'n, Inc., 388 N.J. Super. 571, 588 (App. Div. 2006) (citing Oras v. Hous. Auth. of Bayonne, 373 N.J. Super. 302, 315 (App. Div. 2004)).

Applying these codified standards, we have held that upon a sufficient factual showing, a condominium association may be liable under the LAD for failing to provide a disabled owner a parking space accommodation. Estate of Nicolas, supra, 388 N.J. Super. at 590-91. In Nicolas, we ruled that the LAD provided a resident of a condominium a cause of action for disability discrimination "for the failure of the condominium association to provide a reasonable parking space accommodation in the parking lot common element sufficient to afford her an equal opportunity to the use and enjoyment of her condominium unit." Id. at 591. Specifically, the defendant in Nicolas was found to have violated a Department of Community Affairs regulation requiring designated parking spaces for handicapped individuals. Id. at 589.

Unlike the present case, there is no indication that the disabled resident in Nicolas was in arrears for failure to pay association fees. The appeal in Nicolas also did not arise from an investigation by the Division finding no probable cause of discrimination. Those two distinguishing features are important to our analysis of the present case.

Condominium unit owners are required by law to pay their share of the common expenses. N.J.S.A. 46:8B-17. The statute provides that "[a] unit owner shall, by acceptance of title, be conclusively presumed to have agreed to pay his proportionate share of common expenses accruing while he is the owner of a unit." Ibid. The statute also states that "[n]o unit owner may exempt himself from liability for his share of common expenses by waiver of the enjoyment of the right to use any of the common elements or by abandonment of his unit or otherwise." Ibid. Furthermore, this court has noted that the obligation to pay condominium fees is unconditional. Glen v. June, 344 N.J. Super. 371, 376-77 (App. Div. 2001). Here, it is undisputed that appellant did not make his required payments for several months before respondents revoked his parking privileges. Notably, respondents had also revoked the parking privileges of many other unit owners who were similarly in arrears.

Appellant argues that despite his protracted non-payment of association fees, respondents were obligated to maintain his parking privileges as a reasonable accommodation of his disability. Courts in analogous contexts employ a burden-shifting approach when analyzing a denial of a disability accommodation in the housing context. A disabled tenant "bears the initial burden of showing that the requested accommodation is or was necessary to afford him or her an equal opportunity to use and enjoy a dwelling." Oras, supra, 373 N.J. Super. at 312 (citing Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Scotch Plains, 284 F.3d 442, 457 (3d Cir. 2002)). If the disabled tenant meets this burden, "the burden of proof shifts to the landlord to show that the requested accommodation is or was unreasonable." Ibid. (citing Lapdi-Laurel, supra, 284 F. 3d at 457).

We agree that appellant met his initial burden of showing that an accommodation was necessary for his equal use and enjoyment of his condominium unit. Appellant was declared disabled by the SSA, he had a disabled person identification from the MVC, and his physician attested that he should refrain from walking more than 150 feet. Based on those facts and ignoring for the moment his delinquency in the payment of fees appellant made a prima facie showing that he was unable to derive equal use and enjoyment of his dwelling after respondents required him to park his vehicle 200 to 400 feet away. The extra walking distance from his unit allegedly caused appellant significant discomfort, due to his disability. As a result, the burden shifted to the respondents to demonstrate that the requested accommodation was unreasonable under these particular circumstances.

Considering the results of the investigation as a whole, we conclude that the Director did not abuse his discretion by finding no probable cause, because there is sufficient evidence to regard appellant's demand for the parking accommodation as unreasonable. The Association collected assessment fees in order to maintain the common areas of the complex, including the parking spaces. Appellant indisputably failed to pay the fees that he owed. The Association had the right under the condominium Bylaws and Rules and Regulations to disallow appellant from using the parking areas while he was in arrears on his monthly fees.

As the Division's investigation revealed, the Association had utilized this enforcement mechanism on numerous occasions, and did not single out appellant. Indeed, twenty-two other condominium owners, presumably some or all of whom are not disabled, had been barred from parking in the complex's lot due to their own failure to pay condominium fees.

Appellant was not declared disabled until after the Association had already informed him that he was not permitted to park in the complex's parking area. Once appellant invoked his disabled status, respondent appropriately requested medical documentation from him to confirm that disability. Although he initially furnished respondents with documents from the SSA and the MVC noting his disabled status, appellant inexplicably did not provide the Association with the requested medical documentation until May 2010. Thus, appellant did not supply respondents promptly with the requested medical evidence.

The record contains sufficient evidence to support the Division's investigative findings concerning appellant's requested accommodation. Respondents had to consider not only appellant's own needs and desires, but also the interests of the other unit owners who timely paid their own assessment fees. The other owners would be forced, in effect, to pay a higher percentage of the overall costs to maintain the parking lot for appellant's enjoyment. Additionally, in the future, other condominium owners could be required to pay a higher amount to compensate for appellant's lack of payments.

The Association's offer of a payment plan to appellant to address his mounting arrears also weighs in favor of the finding of no probable cause. The proposal called for appellant to resume paying the $230 monthly assessment, plus $50 monthly towards his arrearages. In exchange, respondents would allow appellant to park in the complex's parking lot. Appellant apparently declined this offer. Even so, the payment plan proposal demonstrates that respondents reasonably attempted to resolve the parking issue with appellant and accommodate his needs without unduly compromising the interests of the other unit owners. Although respondents may have had other options at their disposal to enforce appellant's obligation to pay his assessments, their original responses to his requests for accommodation were not discriminatory or unreasonable. The fact that respondents ultimately acceded to appellant's requests does not vitiate the Division's findings.

In sum, the Director did not abuse his discretion in finding the absence of probable cause under these circumstances.5 We consequently sustain the Division's final agency decision.

A

ffirmed.

1 The record supplied to us includes photographs depicting the various parking locations and appellant's sedan.

2 Appellant had received an undated letter from the SSA stating that he had been found disabled in April 2009, entitling him to disability benefits in October 2009. This letter corrected a prior undated SSA letter, which had specified the disability date as September 8, 2009.

3 The findings of the investigation cite to N.J.S.A. 10:5-12g, but the complaint alleges a violation of N.J.S.A. 10:5-4. This discrepancy in citation does not affect our analysis.

4 The investigator's report indicates that at an unspecified time while the investigation was pending, the Association's board of directors voted to allow appellant to resume parking in his original spot as an accommodation. Appellant's claim of discrimination is therefore confined to the time preceding the board's vote. It is unclear from the record on appeal if appellant has since paid down all of the arrears on his overdue assessments or satisfied the monetary judgment in the collection action.

5 Our conclusion is unaffected by an unpublished administrative agency decision cited in appellant's reply brief. We recognize that in that unreported case, the DCR found probable cause for an LAD violation where a condominium association had suspended a disabled resident's parking privileges. However, the facts of that unpublished case are more extreme, and thus distinguishable in many respects. In particular, the resident had been using a handicapped parking space at the facility for eight years before falling behind in payments, the respondents did not seek medical documentation of her disability, and the suspension of on-site privileges forced the resident to park almost a mile away. Moreover, the unpublished case is not precedential, see Rule 1:36-3, and binds neither this court nor the Division in this case.