Labor Commission v. FCS Community ( 2024 )

2024 UT App 14THE UTAH COURT OF APPEALS
LABOR COMMISSION, ANTIDISCRIMINATION AND LABOR DIVISION;
NATALIE SACKS; AND DEVON SACKS,
Appellees,
v.
FCS COMMUNITY MANAGEMENT AND
ROSECREST COMMUNITIES MASTER HOA,
Appellants.
Opinion
No. 20210698-CA
Filed February 1, 2024
Third District Court, Salt Lake Department
The Honorable Patrick Corum
No. 190909481
Robert C. Keller, Nathanael J. Mitchell, Luisa R.
Gough, and Melinda K. Bowen,
Attorneys for Appellants
Sean D. Reyes, Erin T. Middleton, and Scott G.
Higley, Attorneys for Appellees
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 This case presents the question of whether a homeowner
association constructively denied an accommodation request for
comfort chickens when keeping poultry was expressly prohibited
by the community’s covenants. On stipulated facts, the district
court ruled that the homeowner association constructively denied
the accommodation, and, as a result, the court confirmed
damages, attorney fees, a civil penalty, and remedial relief. We
Labor Commission v. FCS Community Management
conclude, however, that there was no constructive denial under
the facts of this case and reverse the decision of the district court.
BACKGROUND 1
¶2 Natalie and Devon Sacks wanted a home in an area where
backyard chickens were allowed, both to ensure a supply of fresh
eggs and to provide an opportunity for their children to learn
responsibility. Natalie has a medical condition—reactive
hypoglycemia—that requires her to have fresh eggs.
¶3 The Sackses purchased a house, located on a .28 acre lot, in
Herriman, Utah, in July 2016. The property was part of a
subdivision governed by the Rosecrest Communities Master
HOA, which contracted with FCS Community Management to
perform financial and administrative functions within the
subdivision (collectively, HOA). The property was subject to the
HOA’s governing documents, including a “Declaration of
Covenants, Conditions, and Restrictions” (CC&Rs).
¶4 The relevant section of the CC&Rs provided that each
residence was limited to “three animals or two of the same kind
of animal,” and only those specifically listed. Significantly, “[f]or
the avoidance of any doubt,” the CC&Rs pointed out that
“chickens or other poultry” were “not allowed” because they
were not among the “ordinary and specifically listed household
pets.” Despite being provided a copy of the CC&Rs at the time of
purchase, the Sackses stated that they did not review the CC&Rs
or consult with anyone on the HOA board to determine if
chickens were allowed.
1. For the most part, the background section, including the quoted
statements, is drawn from the set of facts to which the parties
stipulated before the district court. See infra ¶ 24.
20210698-CA 2 2024 UT App 14Labor Commission v. FCS Community Management
¶5 The Sackses purchased eight chickens in January 2018.
While the birds were initially bought to provide fresh eggs to
address Natalie’s medical condition, the Sackses soon discovered
that the chickens had a positive impact on their daughter, who has
a sensory processing disorder that results in tactile, aural, visual,
and thermal hypersensitivity. This condition causes her to become
easily overwhelmed and withdrawn. And the Sackses noticed
that their daughter formed a bond with the chickens, which
allowed her to improve in school, advance socially, and reduce
her levels of anxiety and insecurity.
¶6 But the neighbors didn’t share the Sackses’ fondness for the
chickens. In early April 2018, a neighbor notified the HOA’s
subdivision manager that the Sackses had chickens and asked that
they be notified that chickens were on the CC&Rs’ forbidden-
animal list. 2
¶7 On April 10, the manager sent the Sackses a “Courtesy
Notice” informing them that they were not allowed to keep
chickens under the CC&Rs. The notice asked the Sackses “to
remove the chickens immediately or face potential fines.” Two
days later, another neighbor complained to the manager “about
the smell and noise from the chickens.”
¶8 On April 13, Natalie emailed the manager to request a
“variance” to the CC&Rs to allow them to keep all eight chickens.
The request “did not mention a disability or a disability-related
need for the chickens.”
2. At this point in the sequence of events, the timing of
correspondence between the HOA and the Sackses plays a central
role in this case. Accordingly, we include specific dates in our
recitation of the facts.
20210698-CA 3 2024 UT App 14Labor Commission v. FCS Community Management
¶9 On April 17, the HOA denied the request for a variance.
The manager “explained that the CC&Rs specifically mentioned
chickens as not being allowed in the community.”
¶10 On April 18, Natalie “responded by stating that her
property was large enough that health and noise concerns would
be mitigated, and again asked for a variance.” Her response again
did not mention a need for the chickens related to any disabilities.
¶11 On April 20, the manager reiterated “that the HOA would
not grant a variance for the chickens.” Natalie responded to the
manager on the same day, stating for the first time that the family
had a disability-related need for the chickens and explaining that
she needed the chickens for two reasons. First, Natalie said her
medical condition required her to have fresh eggs supplied by
the chickens. Second, citing her daughter’s disabilities,
Natalie asserted that the chickens had helped her daughter
“improve in school and socially.” Accordingly, Natalie “stated
that she was requesting that the HOA reconsider the denial on the
basis of the chickens’ positive health impact on both her and her
daughter.”
¶12 On April 23, the manager responded that the variance was
still denied. On the same day, Natalie renewed her request for a
variance, but this time she cited the Utah Fair Housing Act
(UFHA), see Utah Code §§ 57-21-1 to -14, and requested that all
eight chickens be allowed to “remain as assistance animals” as a
“reasonable accommodation” for her and her daughter’s
“disabilities.”
¶13 On May 3, the manager responded by asking for a note
from a doctor supporting the need for the chickens as an
accommodation. And on May 8, Natalie provided the manager
with a letter from a licensed clinical mental health counselor
stating that the daughter “suffered from post-traumatic stress
disorder” and noting that “since the chickens had arrived, [the
20210698-CA 4 2024 UT App 14Labor Commission v. FCS Community Management
daughter’s] anxiety episodes and general sense of insecurity had
decreased significantly and her mental state had vastly
improved.” The counselor “also stated that removal of the
chickens would be detrimental to the mental well-being” of
Natalie and her daughter.
¶14 From May 8 until July 5, no communication between the
parties occurred. But during this entire time, all eight chickens
remained on the Sackses’ property.
¶15 After receiving the counselor’s note on May 8, “the HOA
performed a review of the request for accommodation to
determine whether it was required to grant a reasonable
accommodation for the chickens.” This review examined the
“potential health and safety of the surrounding neighbors”
through (1) “an analysis of the slope and drainage plan for the
[Sackses’] property and surrounding lots to assess the
consequences of potential runoff of chicken waste from the
[Sackses’] property to adjoining properties during rain or water
sprinkler use” and (2) “a consideration of a potential rodent
problem as the [Sackses’] neighbors had informed the HOA of
mice problems since the introduction of the chickens into the
neighborhood.”
¶16 “After analyzing the health and safety concerns of the
neighborhood, the HOA attempted to determine whether the
[Sackses] had provided a sufficient justification for
maintaining all eight chickens, or whether the request for
accommodation could be satisfied with a smaller number of
chickens.” To that end, the HOA attorney emailed Natalie on July
5 “to confirm the number of chickens she intended to seek as
assistance animals.” That same day, Natalie confirmed the
number was eight, all hens.
¶17 By late July, the HOA had completed its review and had
made a decision: it would offer, as an accommodation, to allow
20210698-CA 5 2024 UT App 14Labor Commission v. FCS Community Management
the Sackses to have two chickens. On July 25, the HOA sent
Natalie an accommodation letter, explaining that the family
would be allowed to have two chickens but no roosters, as long as
the family complied with regulations regarding coop
maintenance and took measures to reduce odor, unsightliness,
rodents, noise, and other nuisances.
¶18 Shortly thereafter, Natalie “responded that the
accommodation needed to be amended to include all eight
chickens” because her daughter “was bonded to each hen.” 3
¶19 On August 1, the HOA attorney spoke with the counselor
regarding the daughter’s “individualized need for each specific
hen.” The counselor “stated she could not opine on the specific
necessity of each hen but did identify that [the daughter] had
formed a particular bond with one of the chickens.” And on
August 7, Natalie submitted a letter to the HOA from her
daughter’s pediatrician in support of the “request for the chickens
as assistance animals.” The pediatrician indicated that Natalie’s
daughter “was diagnosed with anxiety and PTSD, and that the
chickens were a part of her treatment for managing her anxiety
symptoms.” The next day, the HOA attorney called the
pediatrician “to inquire as to the number of chickens” the
daughter “required as an accommodation for her disabilities.”
The pediatrician did not opine on the precise number of chickens
the daughter needed but stated that the daughter “had bonded
particularly with one chicken and that the removal of any of the
chickens would increase [her] stress.”
¶20 On August 9, the HOA attorney informed Natalie “that the
HOA’s offer for a reasonable accommodation was to allow two
chickens to stay.” Natalie held fast, insisting “that they could not
3. The stipulated facts do not provide the date of this
communication, but the sequence of events indicates that it had to
be between July 25 and August 1.
20210698-CA 6 2024 UT App 14Labor Commission v. FCS Community Management
get rid of any of their chickens and that the accommodation
needed to be for all eight chickens.” The parties had “additional
communications reiterating these same positions.” But the
Sackses refused to comply with the HOA’s accommodated
position that they reduce the number of chickens from eight to
two. As a result, on August 15, the HOA issued a $25 fine to the
Sackses for violating the CC&Rs.
¶21 A few months later, knowing that the HOA refused to
allow them to keep all eight chickens, the Sackses sold their house
and moved out of the subdivision. The $25 fine was collected at
the closing of the sale.
¶22 On February 19, 2019, the Sackses filed a claim with the
Utah Antidiscrimination and Labor Division (UALD) alleging
that their daughter had been harmed by a discriminatory housing
practice. UALD interviewed six witnesses and reviewed the
parties’ communications before issuing its final report and order
in November 2019. UALD determined that the HOA’s
“unwarranted delay in processing” the Sackses’ “reasonable
accommodation request and failure to substantially engage in the
interactive process” constituted “a constructive denial of
reasonable accommodation prior to July 25, 2018.” But UALD also
concluded that the HOA “did not deny” the Sackses’ “reasonable
accommodation request” in allowing only two chickens from July
25 forward. Despite finding that the HOA’s offered
accommodation was reasonable, UALD proceeded to award the
Sackses attorney fees and damages. UALD also assessed a fine
against the HOA, along with requiring HOA leaders to “attend
fair-housing training” and implement certain measures to ensure
future compliance with the UFHA regulations for reasonable
accommodation requests.
¶23 UALD filed a complaint on behalf of the Sackses asking for
de novo review of UALD’s determination that the HOA violated
20210698-CA 7 2024 UT App 14Labor Commission v. FCS Community Management
the UFHA. 4 Specifically, the Sackses asked the court to “adopt”
UALD’s report, confirm the award of the fees and damages, and
order the HOA to take the remedial actions to prevent future
discriminatory actions. The HOA moved for summary judgment,
arguing that because the Sackses were not denied a reasonable
accommodation, their claim of discrimination in violation of the
UFHA failed as a matter of law. Specifically, the HOA argued that
(1) the Sackses’ request for an accommodation of eight chickens
was unreasonable; (2) the HOA did not deny, either
constructively or actually, the request for accommodation; (3) the
Sackses “were not denied the possession, use, or benefit of their
chickens” during the time period in which the HOA was
reviewing the matter; and (4) the HOA had not acted in bad faith
or with discriminatory intent during the two-month period of
review. The district court denied the motion for summary
judgment, reasoning that while the facts were not in dispute, there
remained a “reasonable inference based upon [those] facts that
there was a constructive denial.”
4. When UALD issues a written determination after investigating
a discriminatory housing practice complaint, “a party to the
complaint may obtain de novo review of the determination by
submitting a written request for a formal adjudicative hearing”
before the Utah Labor Commission’s Division of Adjudication.
Utah Code § 57-21-10(1)(a). After this review has been requested,
“any party to the complaint may elect to have the de novo review
take place in a civil action in the district court rather than in a
formal adjudicative hearing with the Division of Adjudication.”
Id. § 57-21-10(2)(a). That is what happened here: the Sackses, even
though they were granted the accommodation by UALD, sought
judicial review of UALD’s determination, essentially asking the
district court to confirm it. UALD provided legal representation
to the Sackses because it found substantial evidence supported its
determination that discriminatory practices had occurred. See id.
§ 57-21-10(3).
20210698-CA 8 2024 UT App 14Labor Commission v. FCS Community Management
¶24 The parties subsequently submitted a “list of stipulated
facts and [a] legal question presented for the purpose of
narrowing the issues to be determined” by the court. The sole
legal question identified by the parties was “whether the
[Sackses’] request for a reasonable accommodation was
constructively denied based on the . . . stipulated facts.”
¶25 Relying on reasoning from the federal courts, the district
court stated that the Sackses, as the parties “seeking to assert a
claim that they were denied a reasonable accommodation,” had
to establish five elements: (1) that they “suffer[ed] from a
disability as defined” by the UFHA, (2) that the HOA “knew or
reasonably should have known of [their] disability,” (3) that the
Sackses “need[ed] accommodation to have an equal opportunity
to use and enjoy [their] dwelling,” (4) that “the accommodation
[sought] is reasonable,” and (5) that the HOA “refused to make
such accommodation.” See Haws v. Norman, No. 15–cv–00422,
2017 WL 4221064, at *4 (D. Utah Sept. 20, 2017).
¶26 The court concluded that, because the first three elements
of the claim were not in dispute, the “question presented to
[the court was] whether [the HOA’s] failure to communicate
or otherwise engage with the [Sackses] for approximately
two months constituted a constructive denial of a reasonable
request.”
¶27 The court noted that the HOA had also argued that the
Sackses’ request for an accommodation to keep all eight chickens
was unreasonable. But the court observed that the argument was
not properly before the court because it fell outside the scope of
the stipulated legal question, which was limited to whether the
“request for a reasonable accommodation was constructively
denied.” But even if the reasonableness of requesting an
accommodation for all eight chickens was “considered part of the
stipulated question,” the court observed that this would not affect
the resolution of the constructive denial issue for two reasons.
20210698-CA 9 2024 UT App 14Labor Commission v. FCS Community Management
¶28 First, the court interpreted the stipulated facts to show that
the request was supported by “unchallenged evidence” that the
daughter needed to keep all eight chickens because she “had a
bond with each of the chickens” and “the providers specifically
stated that removing even one chicken would increase [her]
stress.” And the court observed that there was “scant evidence”
that keeping all eight chickens “would have resulted in a
significant negative impact” on the subdivision or the neighbors.
Based on this, the court concluded that the Sackses’ request for all
eight chickens was reasonable.
¶29 Second, in a constructive denial context, the court noted the
following:
[Delays deny] the requesting party . . . the requested
accommodation even if a reasonable alternative or
compromise is later offered. . . . In cases where the
request is patently unreasonable, there may
ultimately be no harm from a denial or a delay. That
is not the case, however, where the request is
arguably reasonable or the requesting party has
made an initial showing that the request is
reasonable and necessary (and in this case, the
[court] finds that the request was reasonable). To
allow the [HOA] or housing provider to unduly
delay their response to a potentially meritorious
request would thwart the purposes of the [UFHA]
by effectively denying the requesting party the
accommodation without any stated justification. A
constructive denial claim[5] exists to prevent that
5. The notion of a “constructive denial claim” is not helpful and
has led to confusion by implying that there is a standalone claim
for damages for constructive denial. In fact, the proper claim is for
injunctive relief and damages arising from a “discriminatory
(continued…)
20210698-CA 10 2024 UT App 14Labor Commission v. FCS Community Management
from occurring. Thus, where a constructive denial
claim is asserted, the [court] believes that the
complainant need only show that the initial request
was arguably reasonable rather than showing that
the request ultimately was or would have been
deemed reasonable.
¶30 The court then turned to the issue of whether (in this case)
the requested accommodation was constructively denied. It noted
that the HOA, as the housing provider, was under no obligation
to immediately grant the request for the accommodation. See
Bhogaita v. Altamonte Heights Condo. Ass’n, 765 F.3d 1277, 1285–86
(11th Cir. 2014) (“The [federal] FHA does not demand that
housing providers immediately grant all requests for
accommodation.”). “But,” the court ruled, “the state and federal
fair housing acts do not allow a housing provider to effectively
deny the claim for a time by ignoring the request or delay
responding. Instead, they must ‘participate in an interactive
process’ to evaluate the request and ‘discuss the need for the
accommodation and possible alternatives.’” (Quoting Astralis
Condo. Ass’n v. Secretary, U.S. Dep’t of Housing & Urban Dev., 620
F.3d 62, 68 & n.3 (1st Cir. 2010).)
¶31 Here, the court concluded that a “review of the stipulated
facts” showed that the “requisite interactive process or dialogue
did not take place.” After receiving the initial request and
obtaining the requested documentation, the HOA did not contact
housing practice” consisting of “a refusal to make a reasonable
accommodation in a rule, policy, practice, or service when the
accommodation may be necessary to afford the person equal
opportunity to use and enjoy a dwelling.” See Utah Code §§ 57-
21-11(1), -5(4)(b). Rather than a separate cause of action,
constructive denial more accurately describes one possible means
by which a request for reasonable accommodation might be
denied.
20210698-CA 11 2024 UT App 14Labor Commission v. FCS Community Management
the Sackses for nearly two months. And even when the HOA
made contact, “there was not meaningful dialogue.” Rather, the
HOA asked Natalie to confirm the information that it already had
(namely, the number of chickens the Sackses wanted to keep).
This inquiry from the HOA was followed by another three weeks
of silence. The court concluded,
Thus, for almost three months, [the HOA] had only
one brief contact with the [Sackses], and that contact
merely sought information that had already been
provided. Such limited contact by [the HOA] clearly
falls short of an actual dialogue with the [Sackses]
and does not constitute the type of interactive
process or discussion of the request that is required.
Consequently, that unjustified delay, accompanied
by the lack of dialogue or an interactive process is
sufficient to show that [the HOA’s] delay in
responding to the [Sackses] was unwarranted and
that [the HOA] constructively denied the [Sackses’]
request during that time.
¶32 The court allowed UALD’s order to stand, ordering the
HOA to pay $1,750 in damages, $9,360 in attorney fees, and a
$1,000 civil penalty. The court additionally instructed the HOA to
take remedial actions to prevent future UFHA violations. The
HOA appeals.
ISSUE AND STANDARD OF REVIEW
¶33 The HOA claims that the district court erred “when it
determined that [the HOA] constructively denied the request for
accommodation based on the absence of communications” over a
nearly three-month period. “[T]he question of whether a set of
facts falls within a legal standard is itself a question of law.”
Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 33, 308 P.3d 461. Even
if we considered this a mixed question, we would still review it
20210698-CA 12 2024 UT App 14Labor Commission v. FCS Community Management
for correctness because the question is more law-like than fact-
like. Id. ¶¶ 36–39. This is especially true when the issue is
submitted to the district court on stipulated facts. Id. ¶ 40. 6
ANALYSIS
¶34 The UFHA states that “a refusal to make a reasonable
accommodation in a rule, policy, practice, or service when the
accommodation may be necessary to afford [a person with a
disability] equal opportunity to use and enjoy a dwelling”
constitutes a “discriminatory housing practice.” Utah Code § 57-
21-5(4)(b).
¶35 This language is materially the same as its federal
counterpart. See 42 U.S.C. § 3604(f)(3)(B) (“[D]iscrimination
includes . . . refusal 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 . . . .”). When the
“language and apparent policy” of the UFHA are substantially the
same as the federal Fair Housing Act (FHA), “it is appropriate to
look to federal law as persuasive authority” for interpreting
6. The HOA raises two other issues on appeal. First, it claims that
the district court erred when it determined that constructive
denial can “occur in the absence of evidence of bad faith or
discriminatory intent” under the UFHA. Because we resolve this
case by determining that there was no constructive denial, we
need not address this issue.
Second, the HOA asserts that the district court erred in
concluding that the HOA “constructively denied” the Sackses’
request for accommodation, even though the Sackses “failed to
meet their burden of showing the request was both necessary and
reasonable.” Again, given our resolution of this case, we need not
address this issue.
20210698-CA 13 2024 UT App 14Labor Commission v. FCS Community Management
Utah’s act. Malibu Inv. Co. v. Sparks, 2000 UT 30, ¶ 27 n.11, 996 P.2d
1043; see also Utah State Tax Comm’n v. See’s Candies, Inc., 2018 UT
57, ¶ 47, 435 P.3d 147; Brixen & Christopher Architects, PC v. State,
2001 UT App 210, ¶ 33, 29 P.3d 650.
¶36 As outlined in our recitation of the facts, UALD
determined that the HOA constructively denied the Sackses’
request for a reasonable accommodation for two reasons: (1) there
was “unwarranted delay in processing” the Sackses’ “reasonable
accommodation request” on the part of the HOA and (2) the HOA
failed to “substantially engage in the interactive process” during
the time it took to reach its decision. But because the HOA
eventually made a decision regarding the reasonable
accommodation, UALD cabined the period of constructive denial
to the period from when Natalie invoked the UFHA as the basis
for the accommodation to when the HOA notified the Sackses of
its decision (April 23, 2018, through July 25, 2018). 7
¶37 UALD argues that a constructive denial is a “refusal to
make a reasonable accommodation” under the UFHA.
Subsequent remedial actions, UALD argues, including an express
accommodation or a partial accommodation, would not change
the fact that a “refusal” had occurred. 8 Accordingly, UALD argues
7. We asked the parties for supplemental briefing on several
issues, including whether a failure to engage in an interactive
process can constitute a standalone cause of action for damages.
Both parties agreed it cannot. To be clear, UALD asserts that a
failure to engage should be considered in determining whether a
request for a reasonable accommodation has been constructively
denied.
8. No Utah cases construing the UFHA have so held. Instead,
UALD relies on federal cases construing the FHA. See, e.g., Groome
Res. Ltd., LLC v. Parish of Jefferson, 234 F.3d 192, 199 (5th Cir. 2000)
(continued…)
20210698-CA 14 2024 UT App 14Labor Commission v. FCS Community Management
that a constructive denial is not a standalone claim but instead an
alternative way a claimant can show that a request for an
accommodation was denied.
¶38 But we need not answer the question of whether to define
constructive denial along the lines UALD advocates, because even
if such a thing existed, it would not be present here. The facts of
this case do not support the conclusion that there was any
unwarranted delay in evaluating the request or that the HOA
failed to engage in an interactive process while it was coming to a
decision regarding the Sackses’ request for reasonable
accommodation.
¶39 A fairly recent federal case took up the issue of constructive
denial when the requested accommodation was eventually given
and the party was allowed full use of the requested
accommodation during the pendency of the decision-making
process. See LaRosa v. River Quarry Apartments, LLC, No. 18-cv-
(“This denial can be both actual or constructive, as an
indeterminate delay has the same effect as an outright denial. In the
instant case, the district court was well within its discretion to
decide that a reasonable accommodation was denied by the
unjustified delay of the [housing authority].” (emphasis added));
Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597, 602 (4th Cir.
1997) (“Under the [FHA], however, a violation occurs when the
disabled resident is first denied a reasonable accommodation,
irrespective of the remedies granted in subsequent proceedings.”
(emphasis added)); United States v. District of Columbia, 538 F.
Supp. 2d 211, 219 (D.D.C. 2008) (“The [FHA] is violated when a
reasonable accommodation is first denied, regardless of remedial
steps that may be taken later.”); accord Arnal v. Aspen View Condo.
Ass’n, 226 F. Supp. 3d 1177, 1186 (D. Colo. 2016).
20210698-CA 15 2024 UT App 14Labor Commission v. FCS Community Management
00384, 2019 WL 3538951 (D. Idaho Aug. 3, 2019). 9 Robert LaRosa
applied to live in an apartment that charged an additional fee for
residents who owned a dog. Id. at *1. LaRosa requested an
accommodation to keep his dog without paying the fee, and he
presented a note from a nurse practitioner stating that LaRosa
needed the dog to “help manage his post-traumatic stress
disorder.” Id. (cleaned up). About a week later, LaRosa received
an email approving his residence application, but the email stated
the request for the assistance animal was still in process and
required additional documentation. Id. LaRosa immediately
completed and returned the forms and moved into the apartment
with his dog about a week later, with approval for the
accommodation still pending. Id. at *2. About two weeks later, the
apartment manager wrote a letter to LaRosa stating that the
accommodation was denied because the need for an assistance
animal could not be verified. Id. at *3. After additional
communication with LaRosa’s doctor, the apartment complex
changed course and granted the accommodation. Id. at *4. In all,
9. Insofar as we can tell from our review of the record and briefing,
neither party cites this case. Nevertheless, its fact pattern matches
well with the facts at hand. And it is one of the few cases—in fact,
the only one on point that we have been able to find—that takes
on the issue of constructive denial in situations where the housing
authority allows the resident to have the accommodation before
ultimately granting the accommodation after completing its own
review process.
We found one other case, not cited by the parties, that deals
with a constructive denial when the accommodation was granted
and the requester was allowed to keep the animal during the
interim. See Conlin v. RU Cliff, LLC, No. 17-cv-1213, 2019 WL
5788695, at *3, *5 (D. Utah Nov. 6, 2019). But this case involved
only a six-day delay period, which the court concluded did not
constitute an “indeterminate delay” sufficient to support
constructive denial of a reasonable accommodation request. Id. at
*5 (cleaned up).
20210698-CA 16 2024 UT App 14Labor Commission v. FCS Community Management
it took forty-five days for the apartment complex to grant the
accommodation after the initial request was made. Id. at *8.
LaRosa moved out of the apartment about four months later,
stating that the experience caused him “to feel embarrassed,
untrusted, humiliated and unwelcome.” Id. at *4 (cleaned up). He
later filed a claim under the federal FHA, alleging, among other
violations, that the apartment complex failed to reasonably
accommodate his disability during the period before his request
was ultimately granted. Id. at *5–6.
¶40 The court ruled that LaRosa’s claim failed because he had
not “sufficiently alleged” that the apartment complex “refused to
make the requested accommodation.” Id. at *5. More specifically,
the court “concluded that no denial had occurred because even
though the accommodation was not formally granted” for forty-
four days, the dog was “allowed to live with” LaRosa from the
day he moved into the apartment until he moved out. Id. at *6. The
court also noted that during the accommodation review period,
LaRosa was not (1) “fined or otherwise punished” for the dog’s
presence, (2) told to remove the dog, (3) required to pay the pet
fee, or (4) told he had to leave the apartment. Id.
¶41 The court also specifically addressed constructive denial as
it related to the reasonable accommodation request. Id. at *8. The
court explained that a “defendant constructively denies an
accommodation request when an unjustified and indeterminate
delay has the same effect of undermining the FHA’s anti-
discriminatory purpose as a formal denial.” Id. The court went on
to note that “in constructive denial cases, an applicant is typically
left in limbo for a lengthy period while the housing provider
stonewalls.” Id. But here, the court stated that the apartment
complex “was entitled to seek more specific information” to allow
it “to determine that . . . LaRosa suffered from a disability as
defined by the FHA, that an emotional support animal was a
needed accommodation, and that there was a relationship
between the disability and the accommodation.” Id. The court
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determined that forty-five days was not too long for the
apartment complex to conduct this review. Id.¶42 Another case, on which the LaRosa court relied, see id. at *6,
is helpful in our analysis. In Dubois v. Association of Apartment
Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir. 2006), some
apartment owners lived in a complex with bylaws that prohibited
all pets except assistance animals for disabled residents. Id. at
1177. The owners brought home a dog and requested a reasonable
accommodation to allow them to keep it. Id. at 1177–78. They
submitted letters from doctors stating that one of the owners
“suffered from depression, that he would benefit from animal-
assisted therapy, and that separation from [the dog] would
exacerbate his condition.” Id. at 1178. The complex granted
temporary permission for the owners to keep the dog. Id. Before
the complex took any further action, the owners filed a lawsuit
alleging violations of the FHA and its state counterpart. Id.¶43 Even though Dubois was not framed as a constructive
denial case, its reasoning nevertheless applies well to the Sackses’
case. In particular, the Dubois court stated,
Although the parties have argued various issues at
length, there is a simple answer here. The [complex]
never required [the dog] to leave and thus never
refused to make the requested accommodation,
which is one of the essential elements of the FHA
claim. [The owners] kept [the dog] from the day
they brought him home in January 2000 until the
day they vacated their unit in September 2003. . . .
Since the [complex] never refused to make the
requested accommodation, [the owners’] FHA
claim necessarily failed.
Id. at 1179.
20210698-CA 18 2024 UT App 14Labor Commission v. FCS Community Management
¶44 Here, using similar reasoning as articulated in LaRosa and
Dubois, we conclude that—prior to July 25—the HOA never
refused to make the Sackses’ requested reasonable
accommodation, either through constructive or actual denial.
1. Communication After Receiving the Accommodation
Request
¶45 Contrary to UALD’s characterizations, the timeline was
filled with relatively frequent activity on the part of the HOA,
militating against a conclusion that the HOA’s silence in response
to the Sackses’ accommodation request implied denial. If
anything, the periods of non-communication indicated that the
HOA was evaluating factors necessary to grant the request.
¶46 Natalie first made a UFHA accommodation request on
April 23. The HOA responded ten days later (May 3), saying that
it needed a doctor’s note supporting the need for chickens as an
accommodation. On May 8, Natalie provided the note. After
receiving the note, the HOA conducted a review of the
accommodation request, which took fifty-eight days (May 9 to
July 5). This review addressed three issues. First, the HOA sought
“to determine whether it was required to grant a reasonable
accommodation for the chickens.” Second, it analyzed “the slope
and drainage plan” of the Sackses’ property relative to the
surrounding lots to determine the potential consequences of
“runoff of chicken waste” that might result from rain or sprinkler
use. Third, it considered a “potential rodent problem” that had
been raised by neighbors since the chickens’ arrival. Obviously,
the answer to the second and third inquiries would depend in
large measure on how many chickens the Sackses wanted to keep.
Specifically, as stipulated in the facts, “the HOA attempted to
determine whether the [Sackses] had provided a sufficient
justification for maintaining all eight chickens, or whether the
request for accommodation could be satisfied with a smaller
number of chickens.” So, apparently having concluded that an
20210698-CA 19 2024 UT App 14Labor Commission v. FCS Community Management
accommodation for at least some chickens was in order, the HOA
asked the Sackses on July 5 about the number of chickens they
needed. Natalie responded that they “intended to keep” all eight
chickens “as emotional support animals.” Twenty days later (July
25), the HOA sent the Sackses a letter allowing them to keep two
hens—but not all eight—as an accommodation and directing
them to take specific steps to mitigate concerns regarding odor,
rodents, noise, and unsightliness.
2. Alleged Delay in Granting the Accommodation
¶47 We do not see the period from when the Sackses filed the
UFHA accommodation request to when the HOA granted the
accommodation to be unreasonably long, especially considering
the three issues that the HOA explored during that time.
¶48 First, the HOA sought “to determine whether it was
required to grant a reasonable accommodation for the chickens.”
Chickens as comfort animals is a relatively novel concept. Indeed,
recent news stories indicate that while some groups recognize
chickens as emotional support animals, 10 their status as such is
10. One organization involved in therapy animals observes that
“[b]esides dogs and cats, there are a great many other species that
make wonderful visiting animals and can form strong human-
animal bonds,” including birds, rabbits, domestic rats, hamsters,
guinea pigs, ducks, chickens, goats, miniature pigs, llamas, cows,
and horses. Pet Suitability FAQ, Intermountain Therapy Animals,
https://therapyanimals.org/pet-suitability-faq [https://perma.cc/
UW5B-989Y]; see also Susie Kearley, Therapy Chickens Combat
Isolation and Loneliness, Backyard Poultry, https://backyard
poultry.iamcountryside.com/chickens-101/therapychickens-combat
-isolation-loneliness [https://perma.cc/LBW8-8PUB].
20210698-CA 20 2024 UT App 14Labor Commission v. FCS Community Management
less than clear and only recently becoming recognized. 11 We note
these recent trends not to take a stand on the issue, but merely to
indicate that the concept of comfort chickens might be news to
many people. Given the dynamic status of this issue, we think it
was entirely reasonable for the HOA to take a step back and spend
a few weeks researching the status of chickens as support animals.
Moreover, during this time frame, the HOA had to consider the
other two concerns identified in the stipulated facts—chicken
waste runoff and rodent complaints—and evaluate whether an
accommodation could be made that addressed these potential
problems.
3. Alleged Harm Suffered by the Sackses
¶49 We also fail to see how the Sackses were harmed by the
HOA’s alleged delay in granting the accommodation.
¶50 First, the stipulated facts contain no indication that the
HOA ever communicated to Natalie that her UFHA request for a
reasonable accommodation was denied. Admittedly, the facts
unequivocally indicate that the HOA initially denied the Sackses’
request for a variance from the CC&Rs to allow them to keep
chickens on three occasions (April 17, 20, and 23). But these
denials arose from the bare request for a variance from the CC&Rs
that was not made under the auspices of the UFHA. The HOA
made no further denials of the Sackses’ accommodation request
after Natalie invoked the UFHA as the basis for reasonable
accommodation. Rather, the HOA communicated to her that it
needed information to determine how many chickens were
11. A city appeals board in Bangor, Maine, recently allowed a man
to keep emotional support chickens even though the city had a
no-chicken rule. See Sydney Page, After Months-long Fight, Maine
Man Can Keep Emotional Support Chickens, Washington Post,
https://www.washingtonpost.com/lifestyle/2023/10/17/emotional
-support-chickens-maine-disabled [https://perma.cc/TQJ3-54BQ].
20210698-CA 21 2024 UT App 14Labor Commission v. FCS Community Management
necessary to accommodate her daughter’s disability. From this
request, the Sackses could have inferred that an accommodation
may soon be forthcoming but the accommodation might not be
for everything (namely, all eight chickens) they had requested—
given the HOA’s question about how many chickens the Sackses
intended to keep.
¶51 Second, the stipulated facts also indicate that the fine was
imposed not because the Sackses had initially kept the chickens in
violation of the CC&Rs but because they continued to keep more
than the two chickens allowed by the HOA’s accommodation
communicated to them on July 25. While it is true that the HOA
told the Sackses on April 10 that they could “face potential fines”
unless they removed the chickens “immediately,” the facts
nowhere suggest that the Sackses were threatened with a fine
during the pendency of the HOA’s consideration of the
accommodation made under the UFHA on April 23.
¶52 Third, the Sackses’ accommodation request was never
entirely denied—either constructively or actually. On the
contrary, at least during the period in which the HOA was
evaluating their request, the accommodation was granted in
its entirety. The stipulated facts explicitly state that the
Sackses were allowed to keep all eight chickens during the
HOA’s consideration of the accommodation request. This is a fact
of no small import. It shows that the Sackses were given
everything they requested during the pendency of the
consideration period. If anything, by allowing the Sackses to keep
all the chickens during this period, the HOA constructively
accommodated rather than constructively denied the request.
This period of constructive accommodation was followed by a
partial actual accommodation on July 25 when the HOA
communicated its decision to allow the Sackses to keep two
chickens, not all eight, provided they mitigate the identified
nuisance concerns.
20210698-CA 22 2024 UT App 14Labor Commission v. FCS Community Management
¶53 In sum, the rubric of constructive denial simply does not fit
the facts of this case. The request was ultimately granted, at least
in part. The Sackses were allowed the benefit of their entire
requested accommodation during the investigative period. And
the HOA never punished—or even threatened to punish—the
Sackses during the evaluation period. These facts do not support
the position that the Sackses’ accommodation request was ever
constructively denied. Accordingly, we reverse the determination
that the HOA constructively denied the Sackses’ reasonable
accommodation request. 12
CONCLUSION
¶54 The HOA did not constructively deny the Sackses’
reasonable accommodation request because (1) it allowed them to
enjoy the benefit of their request during the pendency of the
investigation, (2) it did not punish them for keeping the chickens
during the interim period, and (3) it ultimately granted an
accommodation that UALD found reasonable. This determination
forecloses the award of damages, fees, or other relief.
¶55 Reversed.
12. Our determination that the HOA did not constructively deny
the Sackses’ reasonable accommodation request necessarily
forecloses an award of damages and attorney fees or ordering the
remedial measures recommended in UALD’s order.
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