Fishel v. Windsor Plaza Condo. Ass'n ( 2014 )


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  • PRESENT:   All the Justices
    COMMONWEALTH OF VIRGINIA, EX REL.
    FAIR HOUSING BOARD
    v.     Record No. 131806
    WINDSOR PLAZA CONDOMINIUM
    ASSOCIATION, INC., ET AL.                     OPINION BY
    JUSTICE S. BERNARD GOODWYN
    MICHAEL FISHEL, ET AL.                     December 31, 2014
    v.     Record No. 131817
    WINDSOR PLAZA CONDOMINIUM
    ASSOCIATION, INC.
    FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
    Joanne F. Alper, Judge
    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).
    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).       The circuit court granted the
    2
    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
    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
    1
    The Commonwealth named Lois Ann Rossi, Edward and
    Virginia Scruggs, Winston and Maureen Moore, Alan and Kathleen
    Hickling, and Countrywide Home Loans, Inc. as additional
    defendants. Countrywide Home Loans, Inc. holds an interest in
    Alan and Kathleen Hickling’s handicapped parking space by
    virtue of a deed of trust.
    3
    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
    4
    equal opportunity to enjoy his dwelling.    At the close of the
    Commonwealth’s 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.
    Facts
    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
    5
    elements. 2   The site plan for the buildings notes four parking
    spaces for use by disabled persons.    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.”
    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
    2
    “Common elements” are “all portions of the condominium
    other than the units.” Code § 55-79.41.
    3
    A “limited common element” is “a portion of the common
    elements reserved for the exclusive use of those entitled to
    the use of one or more, but less than all, of the units.”
    Code § 55-79.41.
    6
    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
    7
    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 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 request.   On May 7,
    2008, Windsor Plaza’s attorney, Raymond Diaz (Diaz), informed
    8
    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.
    On March 4, 2009, the Fishels filed complaints with the
    FHB and HUD.   Thereafter, an investigator from the FHB visited
    9
    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 circuit court found
    that Fishel did not present any evidence that this option was
    ever presented to the Board or its counsel.
    Analysis
    A.   The Commonwealth’s Appeal (Record No. 131806)
    The Commonwealth assigns error to the rulings of the
    circuit court in (1) holding that the statute of limitations
    barred the Commonwealth’s action against the individual
    parking space owners; (2) ruling that the Commonwealth’s
    evidence supported a claim for a reasonable modification
    instead of a reasonable accommodation; (3) granting Windsor
    Plaza’s motion to strike the Commonwealth’s evidence of
    reasonable accommodation; and (4) ruling that Windsor Plaza’s
    request for attorney’s fees under Code § 36-96.16(D) was not
    barred by the doctrine of sovereign immunity.   Windsor Plaza
    assigns cross error to the circuit court’s refusal to exercise
    its discretion to award Windsor Plaza attorney’s fees and
    costs against the Commonwealth.
    10
    1.   Necessary Parties
    The Commonwealth argues that the circuit court erred in
    ruling that the statute of limitations barred its action
    against the individual parking space owners.    It claims that
    the use of disabled parking spaces by unit owners who are not
    disabled is a “continuing violation” and that Windsor Plaza
    created restrictive covenants running with the land, which
    resulted in negative easements on the disabled parking spaces.
    The Commonwealth notes that the Condominium’s Policy
    Resolution No. 7 4 prohibits parking in disabled spaces without
    a disabled license plate or placard and concludes that to the
    extent that non-disabled unit owners park in the disabled
    parking spaces they own, there is a continuing violation that
    extends the statute of limitations in Code § 36-96.16(A).
    In its prayer for relief, the Commonwealth seeks both a
    declaratory judgment and a permanent injunction requiring
    those with exclusive rights to use the four parking spaces
    identified as “HC” parking spaces to make those spaces
    4
    Windsor Plaza’s parking policy (Policy Resolution No.
    7) includes a provision stating, “No vehicles shall be parked
    in any General Common Element spaces that are reserved for
    handicap parking except vehicles displaying current handicap
    placards or license plates.” Policy Resolution No. 7 also
    authorizes the Board “from time to time and as available, [to]
    designate General Common Element parking spaces for special
    usage purposes (such as handicap parking spaces to accommodate
    disabled residents).”
    11
    available for use by all disabled residents.   The circuit
    court ruled that the individual parking space owners were
    necessary parties to the Commonwealth’s action against Windsor
    Plaza.   In response thereto, the Commonwealth was allowed to
    file the second amended complaint naming the individual
    parking space owners as defendants.   Rossi then filed a
    special plea of the statute of limitations, and the circuit
    court sustained that special plea and entered an order
    determining that the Commonwealth’s actions against all of the
    individual parking space owners were barred by the applicable
    statute of limitations.
    Rossi asks this Court to dismiss the Commonwealth’s
    assignment of error concerning the circuit court’s ruling on
    her special plea because the Commonwealth has not joined all
    of the individual parking space owners in this appeal.     Of the
    eight individual parking space owners it named as defendants
    in its second amended complaint, the Commonwealth has only
    named Rossi in its appeal.
    The Commonwealth does not assign error to the circuit
    court’s determination that each of the individual parking
    space owners was a necessary party; therefore, this ruling has
    become “the law of the case and is binding on appeal.”     See
    Maine v. Adams, 
    277 Va. 230
    , 242, 
    672 S.E.2d 862
    , 869 (2009).
    Because the Commonwealth alleges that the individual parking
    12
    space owners all violated the VFHL and the relief sought by
    the Commonwealth involves the property interests of all of the
    individual parking space owners, they each have an interest in
    resisting the Commonwealth’s claim against them.     An
    appellant’s failure to join a necessary party in the appeal
    compels dismissal of the appeal.      Asch v. Friends of the Cmty.
    of Mount Vernon Yacht Club, 
    251 Va. 89
    , 91, 
    465 S.E.2d 817
    ,
    818-19 (1996).   Because the Commonwealth has failed to join
    all the individual parking space owners as parties in its
    appeal, we will dismiss the Commonwealth’s appeal concerning
    the circuit court’s ruling on the plea in bar filed by Rossi
    without further consideration.
    2.     Modifications and Accommodations under
    Code §§ 36-96.3(B)(i) and (ii)
    In support of its claim that Windsor Plaza discriminated
    against Fishel by failing to make reasonable accommodations in
    rules, practices, policies or services that were necessary to
    afford him equal opportunity to use and enjoy his dwelling,
    the Commonwealth presented evidence that the Fishels mentioned
    to Tilton that there was a common element bicycle storage area
    in the parking garage that was large enough to be converted
    into a parking space for Fishel.      The circuit court ruled that
    such request constituted a reasonable modification request
    rather than a request for a reasonable accommodation.
    13
    The Commonwealth asserts that the circuit court erred in
    ruling that the request for the creation of the disabled
    parking space was not a request for an accommodation under
    Code § 36-96.3(B)(ii).   According to the Commonwealth, parking
    is a service, and Fishel sought an accommodation in the
    “rules, practices, and policies involving the provision of
    that service.”   The Commonwealth claims that modifications
    involve “structural changes” while accommodations involve
    “cosmetic changes” and that converting the bicycle space into
    a disabled parking space for Fishel would require only
    cosmetic changes.   The Commonwealth further argues that
    Windsor Plaza’s Policy Resolution No. 7 explicitly authorizes
    the Board to convert a common elements area, such as the
    bicycle space, into a limited common element parking space to
    accommodate the needs of a disabled person.   Hence, because
    the Fishels’ request to convert the bicycle space into an
    accessible parking space required cosmetic changes and an
    alteration in Windsor Plaza’s parking policy, the Commonwealth
    concludes that its evidence supported a reasonable
    accommodation claim under Code § 36-96.3(B)(ii).
    According to Windsor Plaza, parking is not a service at
    the condominium because all parking spaces are limited common
    elements and are assigned to individual unit owners.   Windsor
    Plaza argues that the circuit court correctly determined that
    14
    the Commonwealth’s evidence concerning the possible conversion
    of the bicycle space supported a cause of action for a
    reasonable modification because a “modification” is made to
    “premises,” while an “accommodation” is made to “rules,
    policies, practices, or services.”
    Whether the Commonwealth’s evidence supported a cause of
    action for failure to provide a reasonable accommodation under
    Code § 36-96.3(B)(ii) requires statutory interpretation of the
    VFHL.    This Court reviews a trial court’s statutory
    interpretation de novo, as a question of law.     Collelo v.
    Geographic Servs., Inc., 
    283 Va. 56
    , 66, 
    727 S.E.2d 55
    , 59
    (2012).    The primary goal of the Court in interpreting
    statutes is to determine the General Assembly’s intent.
    Sheppard v. Junes, 
    287 Va. 397
    , 403, 
    756 S.E.2d 409
    , 411
    (2014).    To do this, we examine the language contained in the
    statute itself, if unambiguous, and apply its plain meaning.
    See Rutter v. Oakwood Living Ctrs. of Va., Inc., 
    282 Va. 4
    ,
    10, 
    710 S.E.2d 460
    , 463 (2011).
    The VFHL protects disabled persons from “unlawful
    discriminatory housing practices.”     See Code § 36-96.3(A)
    (describing actions that qualify as “discriminatory housing
    practices”).    Code § 36-96.3(A)(9) provides,
    It shall be an unlawful discriminatory housing
    practice for any person . . . [t]o discriminate
    against any person in the terms, conditions, or
    15
    privileges of sale or rental of a dwelling, or in
    the provision of services or facilities in
    connection therewith because of a handicap of . . .
    that person.
    “Discrimination” is defined several ways in the VFHL.
    Relevant to this appeal, Code § 36-96.3(B)(i) states that
    “discrimination includes . . . a refusal to permit, at the
    expense of the handicapped person, reasonable modifications of
    existing premises occupied or to be occupied by any person if
    such modifications may be necessary to afford such person full
    enjoyment of the premises.”   Code § 36-96.3(B)(ii) provides
    that discrimination also includes “a refusal to make
    reasonable accommodations in rules, practices, policies, or
    services when such accommodations may be necessary to afford
    such person equal opportunity to use and enjoy a dwelling.”
    The Commonwealth only asserts a violation of Code § 36-
    96.3(B)(ii). It insists that parking is a service and that
    the Fishels requested a reasonable accommodation in that
    service when they requested that Windsor Plaza convert the
    bicycle space into an accessible parking space for them.
    However, the plain meaning of the word “service” does not
    encompass the underground garage parking scheme at Windsor
    Plaza Condominium.
    “Service” is “[l]abor performed in the interest or under
    the direction of others; specif[ically], the performance of
    16
    some useful act or series of acts for the benefit of another,
    usu[ally] for a fee.”   Black’s Law Dictionary 1576 (10th ed.
    2014).   At the condominium, parking spaces have been assigned
    to individual unit owners as property rights appurtenant to
    their condominium units.   These assigned parking spaces are
    limited common elements, which are “reserved for the exclusive
    use” of individual unit owners.     Code § 55-79.41.   Because
    parking spaces are forms of real property at the condominium,
    they are not acts or labor performed to benefit the unit
    owners, and thus parking is not a service under Code § 36-
    96.3(B)(ii).
    To aid us in discerning the General Assembly’s intent,
    we also look at surrounding words in the statute that can
    indicate a term’s meaning.   Newberry Station Homeowners Ass’n
    v. Board of Supervisors, 
    285 Va. 604
    , 619-20 & n.9, 
    740 S.E.2d 548
    , 556-57 & n.9 (2013).     In Code § 36-96.3(B)(ii),
    “accommodations” is followed by “in rules, practices [and]
    policies,” which indicates that accommodations involve
    exceptions to intangible standards, procedures and customs.
    On the other hand, the term “modifications” in Code § 36-
    96.3(B)(i) is followed by the phrase “of existing premises”
    and includes a requirement that the person requesting a
    modification pay for the modification.     The context of Code §
    17
    36-96.3(B)(i) indicates that physical alterations of premises
    involve a modification rather than an accommodation.
    We conclude the ruling of the circuit court is faithful
    to the plain language of Code §§ 36-96.3(B)(i) and (ii).
    There was no evidence at trial concerning what would be
    involved in changing the bicycle storage space into a parking
    space.   However, the Commonwealth acknowledges that
    converting the bicycle space into an accessible parking space
    for Fishel would require physical alterations, although
    slight, to the premises.    Consequently, the circuit court did
    not err in determining that the Commonwealth’s evidence
    concerning the conversion of the bicycle space into an
    accessible parking space supported a cause of action under
    Code § 36-96.3(B)(i) for a reasonable modification rather
    than a cause of action under Code § 36-96.3(B)(ii) for a
    reasonable accommodation.
    3.   Sufficiency of the Evidence: Reasonable
    Accommodation Claim
    The Commonwealth contends that it presented sufficient
    evidence of a violation of Code § 36-96.3(B)(ii) to survive
    Windsor Plaza’s motion to strike the evidence.    The
    Commonwealth asserts that the parties stipulated at trial
    that Fishel is disabled and that it is necessary for him to
    have an accessible parking space.    According to the
    18
    Commonwealth, the evidence showed that Fishel asked for a
    larger parking space in a different location.    The
    Commonwealth claims that in response Windsor Plaza proposed
    “two flawed solutions” and “ignored” Fishel’s reasonable
    request to convert the bicycle storage space into an
    accessible parking space.   It adds that even if all four
    disabled spaces were being used by disabled people, 5 Windsor
    Plaza would nevertheless be required under the VFHL to
    consider converting the bicycle space into an accessible
    parking space for the Fishels.    The Commonwealth argues that
    the Fishels’ request for an accessible parking space is
    reasonable because Windsor Plaza is required by law to
    provide disabled parking spaces.
    By contrast, Windsor Plaza maintains that the evidence
    showed that it offered the Fishels a reasonable accommodation
    but that they rejected the offer.     According to evidence at
    trial, Windsor Plaza negotiated a licensing agreement in
    which the owners of a disabled parking space would allow the
    Fishels to use their space.   Windsor Plaza insists that it is
    not obligated to provide a permanent accommodation.
    To assert a reasonable accommodation claim under the
    VFHL, the plaintiff bears the burden to prove by a
    5
    There was no evidence presented at trial concerning
    whether the four designated “HC” spaces were being used by
    disabled individuals.
    19
    preponderance of the evidence that the requested
    accommodation is reasonable and necessary to give a disabled
    person the equal opportunity to use and enjoy housing.   See
    Scoggins v. Lee’s Crossing Homeowners Ass’n, 
    718 F.3d 262
    ,
    272 (4th Cir. 2013) (stating the elements of a reasonable
    accommodation claim under the FHAA).   In the proceedings
    below, the parties agreed that Fishel is disabled and needs
    an accessible parking space in order to have an equal
    opportunity to enjoy his condominium unit, but they disagreed
    as to whether the Fishels requested a reasonable
    accommodation.
    The Fourth Circuit has recognized several factors a
    court can use to determine whether an accommodation is
    reasonable:
    In determining whether the reasonableness
    requirement has been met, a court may consider as
    factors the extent to which the accommodation would
    undermine the legitimate purposes and effects of
    existing zoning regulations and the benefits that
    the accommodation would provide to the handicapped.
    It may also consider whether alternatives exist to
    accomplish the benefits more efficiently. And in
    measuring the effects of an accommodation, the
    court may look not only to its functional and
    administrative aspects, but also to its costs.
    Bryant Woods Inn, Inc. v. Howard Cnty., 
    124 F.3d 597
    , 604
    (4th Cir. 1997) (analyzing whether a request for an exception
    to zoning regulations was reasonable).   An accommodation is
    not reasonable if it poses “undue financial and
    20
    administrative burdens or changes, adjustments, or
    modifications to existing programs that would be substantial,
    or that would constitute fundamental alterations in the
    nature of the program.”   See 
    id.
     (citations and internal
    quotation marks omitted).    This is a “fact-specific inquiry.”
    Scoggins, 718 F.3d at 272.
    The Fishels asked for a larger parking space in a
    different location.   However, Virginia’s Condominium Act
    permits the reassignment of limited common elements, such as
    the parking spaces at issue, only with the consent of all
    property owners affected by the reassignment.   See Code § 55-
    79.57(A).   We hold that requesting, as an accommodation, the
    reassignment of limited common element parking spaces
    belonging to private individuals is unreasonable because
    Windsor Plaza has no authority to confiscate property
    belonging to one unit owner and to reassign that property to
    another.    See Groner v. Golden Gate Gardens Apartments, 
    250 F.3d 1039
    , 1046 (6th Cir. 2001) (“As a matter of law, the
    [neighbor’s] rights did not have to be sacrificed on the
    altar of reasonable accommodation.”) (alteration in original)
    (citation and internal quotation marks omitted).
    The Commonwealth also argues that its evidence showed
    that Windsor Plaza failed to provide the Fishels with a
    reasonable accommodation by refusing to convert the bicycle
    21
    storage space into an accessible parking space.   However, as
    stated previously, converting the bicycle space is a
    modification “of existing premises,” not an accommodation “in
    rules, practices, policies, or services.”   Therefore, the
    Commonwealth’s evidence concerning the bicycle space did not
    prove a request for a reasonable accommodation.
    The Commonwealth’s only evidence of an accommodation
    request refused by Windsor Plaza was that of reassigning one
    of the limited common element parking spaces to the Fishels.
    Because Windsor Plaza does not have the authority to reassign
    disabled parking spaces that are limited common elements
    without the consent of the owner of the parking space, this
    accommodation request was not reasonable, and we hold that
    the Commonwealth failed to satisfy its burden of proving that
    Windsor Plaza failed to provide a reasonable accommodation.
    Consequently, the circuit court did not err in granting
    Windsor Plaza’s motion to strike the Commonwealth’s evidence.
    4.   Sovereign Immunity
    The Commonwealth argues that the circuit court erred in
    ruling that Windsor Plaza’s claim for attorney’s fees and
    costs against the Commonwealth pursuant to Code § 36-96.16(D)
    was not barred by the doctrine of sovereign immunity.
    Whether the Commonwealth is protected by sovereign immunity
    is a question of law that we review de novo.   See City of
    22
    Chesapeake v. Cunningham, 
    268 Va. 624
    , 633, 
    604 S.E.2d 420
    ,
    426 (2004).   Furthermore, whether the Commonwealth has waived
    sovereign immunity depends upon the proper interpretation of
    Code § 36-96.16(D), which is also a question of law reviewed
    de novo by this Court.    See Collelo, 283 Va. at 66, 
    727 S.E.2d at 59
    .
    “[T]he doctrine of sovereign immunity . . . is alive and
    well in Virginia.”    Jean Moreau & Assocs. v. Health Ctr.
    Comm’n, 
    283 Va. 128
    , 137, 
    720 S.E.2d 105
    , 110 (2012)
    (alteration in original) (citation and internal quotation
    marks omitted).   “Sovereign immunity is a rule of social
    policy, which protects the state from burdensome interference
    with the performance of its governmental functions and
    preserves its control over state funds, property, and
    instrumentalities.”   
    Id.
     (citation and internal quotation
    marks omitted).   Only the General Assembly can abrogate
    sovereign immunity on behalf of the Commonwealth.    Afzall v.
    Commonwealth, 
    273 Va. 226
    , 230, 
    639 S.E.2d 279
    , 281 (2007).
    When it chooses to do so, the “waiver . . . cannot be implied
    from general statutory language but must be explicitly and
    expressly announced in the statute.”    
    Id.
     (citation and
    internal quotation marks omitted).
    Code §§ 36-96.16 and -96.17 create causes of action in
    which the Commonwealth is the plaintiff in actions alleging
    23
    discriminatory housing practices.   In this case, the
    Commonwealth filed its civil action against Windsor Plaza
    pursuant to Code § 36-96.16(A), which mandates,
    Not later than thirty days after a charge is
    referred by the [FHB] to the Attorney General under
    § 36-96.14, the Attorney General shall commence and
    maintain a civil action seeking relief on behalf of
    the complainant in the circuit court for the city,
    county, or town in which the unlawful discriminatory
    housing practice has occurred or is about to occur.
    (Emphasis added.)   Thus, after receiving a referral from the
    FHB, the Commonwealth must “commence and maintain a civil
    action.”   Id.
    On the other hand, under Code § 36-96.17, the
    Commonwealth is given discretion in filing certain types of
    fair housing claims.   See Code §§ 36-96.17(B) (“Whenever the
    Attorney General has reasonable cause to believe that any
    person or group of persons is engaged in a pattern or
    practice of resistance to the full enjoyment of any of the
    rights granted by this chapter, or that any group of persons
    has been denied any of the rights granted by this chapter and
    such denial raises an issue of general public importance, the
    Attorney General may commence a civil action in the
    appropriate circuit court for appropriate relief.”) (emphasis
    added); -96.17(C) (“In the event of a breach of a
    conciliation agreement by a respondent, the [FHB] may
    authorize a civil action by the Attorney General.    The
    24
    Attorney General may commence a civil action in any
    appropriate circuit court . . . .”) (emphasis added).
    Both Code §§ 36-96.16 and -96.17 enable a “prevailing
    party” to seek an award of attorney’s fees.   Code § 36-
    96.16(D), upon which Windsor Plaza relies in requesting
    attorney’s fees and costs from the Commonwealth, states, “In
    any court proceeding arising under this section, the court,
    in its discretion, may allow the prevailing party reasonable
    attorney’s fees and costs.”   Code § 36-96.17(E)(3) states in
    relevant part that a court may “[a]ward the prevailing party
    reasonable attorney’s fees and costs.   The Commonwealth shall
    be liable for such fees and costs to the extent provided by
    the Code of Virginia.”   Thus, Code § 36-96.17(E)(3)
    specifically states that “[t]he Commonwealth shall be liable
    for such fees and costs,” while Code § 36-96.16(D) does not.
    “[W]hen the General Assembly has used specific language
    in one instance, but omits that language or uses different
    language when addressing a similar subject elsewhere in the
    Code, we must presume that the difference in the choice of
    language was intentional.”    Newberry Station Homeowners
    Ass’n, 285 Va. at 616, 740 S.E.2d at 554 (citation and
    internal quotation marks omitted).   Code § 36-96.16(A)
    imposes a mandatory governmental duty on the Attorney General
    to file a civil action on behalf of a complainant when the
    25
    FHB makes a reasonable cause determination and refers the
    matter to the Attorney General.      In such an instance, the
    Attorney General is required by statute to file the civil
    action under the VFHL; the Commonwealth is without discretion
    under Code § 36-96.16 in filing the action.     In interpreting
    the General Assembly’s decision to omit the explicit waiver
    of sovereign immunity contained in Code § 36-96.17(E)(3) from
    Code § 36-96.16(D), we conclude that the General Assembly
    decided not to waive sovereign immunity in actions in which
    the Attorney General is performing a mandatory governmental
    function by filing an action pursuant to Code § 36-96.16.
    Without an express waiver of sovereign immunity, Windsor
    Plaza cannot recover attorney’s fees from the Commonwealth.
    Therefore, the circuit court erred in ruling that Windsor
    Plaza’s claim for attorney’s fees was not barred by the
    doctrine of sovereign immunity.      However, because the circuit
    court decided not to impose attorney’s fees or costs against
    the Commonwealth, such error was harmless.     See Code § 8.01-
    678.
    B.   The Fishels’ Appeal (Record No. 131817)
    The Fishels assign error to the rulings of the circuit
    court in (1) establishing the accrual date for their state
    and federal reasonable accommodation claims; (2) applying the
    statute of limitations period in Code § 36-96.18(B) to their
    26
    additional claims brought when they intervened; and (3)
    determining that the alleged violations of Code §§ 36-
    96.3(A)(8) and (9) and 
    42 U.S.C. §§ 3604
    (f)(1) and (2) were
    not continuing violations.    Windsor Plaza assigns cross error
    to the circuit court’s ruling denying its request for
    attorney’s fees against the Fishels.
    1.   Accrual of State and Federal Reasonable
    Accommodation Claims
    The Fishels argue that the circuit court erred in
    finding that their state and federal reasonable accommodation
    claims accrued on August 23, 2007.     “A plea in bar presents a
    distinct issue of fact which, if proven, creates a bar to the
    plaintiff’s right of recovery.”      Hilton v. Martin, 
    275 Va. 176
    , 179, 
    654 S.E.2d 572
    , 574 (2008).     Whether the circuit
    court erred in finding that August 23, 2007, was the date of
    accrual of the Fishels’ causes of action is a mixed question
    of law and fact that this Court reviews de novo.      See
    Chalifoux v. Radiology Assocs. of Richmond, Inc., 
    281 Va. 690
    , 696, 
    708 S.E.2d 834
    , 837 (2011).     This Court defers to
    the circuit court’s findings of fact and “view[s] the facts
    in the light most favorable to” Windsor Plaza as the
    prevailing party.   See 
    id.
       However, we review the trial
    court’s application of the law to facts de novo.      See
    27
    Westgate at Williamsburg Condo. Ass’n v. Philip Richardson
    Co., 
    270 Va. 566
    , 574, 
    621 S.E.2d 114
    , 118 (2005).
    Under both the VFHL and FHAA, a reasonable accommodation
    claim accrues upon “the occurrence or the termination of an
    alleged discriminatory housing practice.”    Code § 36-
    96.18(A); 
    42 U.S.C. § 3613
    (a)(1)(A).   “[D]iscrimination
    includes . . . a refusal to make reasonable accommodations in
    rules, practices, policies, or services when such
    accommodations may be necessary to afford such person equal
    opportunity to use and enjoy a dwelling . . . .”    Code § 36-
    96.3(B)(ii); 
    42 U.S.C. § 3604
    (f)(3)(B).    Thus, the Fishels’
    reasonable accommodation claims accrued when Windsor Plaza
    denied their request for a reasonable accommodation.
    The parties dispute when Windsor Plaza denied the
    Fishels’ request.   The circuit court found that Windsor Plaza
    denied their request on August 23, 2007.    However, the
    Fishels claim that after August 23, 2007, they engaged in an
    interactive process with Windsor Plaza and that their
    reasonable accommodation claims did not accrue until this
    interactive process concluded.
    When a disabled person makes a request for a reasonable
    accommodation, the parties may engage in an interactive
    process.   The purpose of this interaction between one who has
    requested a reasonable accommodation and the recipient of the
    28
    request is to arrive at a solution that is agreeable to both
    parties.   See Joint Statement of Dep’t of Hous. & Urban Dev.
    & Dep’t of Justice, Reasonable Accommodations Under the Fair
    Housing Act 7 (May 17, 2004). 6    However, the interactive
    process does not change the date of accrual because such a
    process is not required and a reasonable accommodation claim
    accrues when the request is denied. 7    Thus, the relevant
    question is when Windsor Plaza denied the Fishels’ request,
    thereby triggering the statute of limitations for their
    reasonable accommodation claims.
    On July 30, 2007, the Fishels asked for “a larger
    parking space” in a different location because of Fishel’s
    disability.   After Windsor Plaza’s Board considered the
    Fishels’ request, it informed them by email on August 23,
    6
    The Joint Statement is available at
    http://www.justice.gov/crt/about/hce/joint_statement_ra.pdf
    (last visited December 29, 2014).
    7
    Our conclusion is reinforced by the recognition that
    parties may choose to forego the interactive process. We note
    that federal courts disagree as to whether the interactive
    process is mandatory under the FHAA. Compare Jankowski Lee &
    Assocs. v. Cisneros, 
    91 F.3d 891
    , 895 (7th Cir. 1996) (“If a
    landlord is skeptical of a tenant's alleged disability or the
    landlord's ability to provide an accommodation, it is
    incumbent upon the landlord to request documentation or open a
    dialogue.”) with Lapid-Laurel, L.L.C. v. Zoning Bd. of
    Adjustment, 
    284 F.3d 442
    , 455-56 (3d Cir. 2002) (“Therefore,
    we hold that notwithstanding the ‘interactive process’
    requirement that exists in the law of this court in the
    employment context under the Rehabilitation Act, . . . the
    FHAA imposes no such requirement on local land use
    authorities.”) (citation omitted).
    29
    2007, that it was powerless to accommodate their request
    because all the parking spaces were limited common elements
    and deeded to other condominium owners.    It stated that it
    could not reassign the disabled parking spaces.     Thus, there
    is evidence to support the circuit court’s finding that this
    email constituted Windsor Plaza’s denial of the Fishels’
    request and that the Fishels’ reasonable accommodation claims
    accrued on that date.
    The Fishels argue alternatively that they renewed their
    request after receiving the August 23, 2007 email.     They cite
    Tobin v. Liberty Mutual Insurance Co., 
    553 F.3d 121
    , 131 (1st
    Cir. 2009), a case concerning the Americans with Disabilities
    Act (ADA), in support of their position.    In Tobin, the First
    Circuit considered an employee’s reasonable accommodation
    claim against his employer.   
    Id. at 124-25
    .    The court
    acknowledged that the denial of a subsequent request for an
    accommodation could constitute a new discriminatory act for
    purposes of the statute of limitations if an employer commits
    a “new ‘discrete act’ of discrimination.”      
    Id. at 131
    .
    However, the First Circuit observed that when an employer
    denies a subsequent request simply seeking reversal or
    “modification” of a prior denial, the subsequent denial is
    not a new discrete act sufficient to extend the statute of
    limitations.   See 
    id.
     (“[A]n employee may not extend or
    30
    circumvent the limitations period by requesting modification
    or reversal of an employer’s prior action.”).
    Even if law governing renewed requests for reasonable
    accommodations under the ADA applies to reasonable
    accommodations claims under the VFHL and FHAA, there is
    evidence to support the circuit court’s finding that the
    Fishels did not renew their request.   After the Board denied
    their request on August 23, 2007, the Fishels asked “the
    Board to review th[e] issue again in an expedited manner.”
    This is a request for reconsideration of the Board’s prior
    denial, not a renewed request that results in a new denial.
    Consequently, the Board did not commit a new discriminatory
    act after its initial denial on August 23, 2007.
    The Fishels had to file their state reasonable
    accommodation claim within the longer of two years from the
    date of accrual or “180 days after the conclusion of the
    administrative process.”   See Code § 36-96.18(B).    Two
    calendar years from the date of accrual fell on August 23,
    2009, and 180 days from the conclusion of the FHB proceeding
    fell in late November 2010.   See Ward v. Insurance Co. of N.
    Am., 
    253 Va. 232
    , 235, 
    482 S.E.2d 795
    , 797 (1997) (holding
    that Virginia statutes of limitations are calculated using
    “calendar years and not ‘365-day periods’”).    The Fishels’
    31
    intervening complaint was not filed until January 28, 2011,
    after both statutory time periods had passed.
    Likewise, the Fishels’ federal reasonable accommodation
    claim was also barred.    Even with the benefit of tolling
    while the administrative process was pending from May 4, 2009
    until June 1, 2010, the federal two-year statute of
    limitations expired in September 2010.    See 
    42 U.S.C. § 3613
    (a)(1)(B).    Therefore, we hold that the circuit court did
    not err in finding that the Fishels’ reasonable accommodation
    claims filed on January 28, 2011 were barred by the statute
    of limitations.
    2.      Intervention Pursuant to Code § 36-96.16
    The Fishels contend that the circuit court also erred in
    applying the statute of limitations in Code § 36-96.18 to
    their claims because they intervened in the Commonwealth’s
    action pursuant to Code § 36-96.16.    They point out that
    under Code § 36-96.16(B) intervention is “as of right.”      The
    Fishels maintain that there is no statute of limitations for
    intervention under Rule 3:14 or Code § 36-96.16 and that
    circuit courts instead exercise their sound discretion in
    permitting intervention.
    On the other hand, Windsor Plaza asks this Court to
    construe Code §§ 36-96.16 and -96.18 together.    Windsor Plaza
    maintains that although Code § 36-96.16 allows the Fishels to
    32
    intervene, the statute of limitations period in Code § 36-
    96.18 applies to the Fishels’ new claims because they are
    private parties and because no exception is carved out for
    intervenors.
    The Fishels not only intervened in the action brought by
    the Commonwealth, they also filed an intervening complaint
    which raised additional causes of action that had not been
    raised by the Commonwealth in its complaint.   Whether the
    statute of limitations in Code § 36-96.18 applies to the
    Fishels’ civil action filed pursuant to Code § 36-96.16
    requires statutory interpretation, which is a question of law
    that we review de novo.   See Collelo, 283 Va. at 66, 
    727 S.E.2d at 59
    .   “Statutes dealing with the same subject matter
    must be read together so as to adhere to the legislative
    intent underlying them and to permit them to operate together
    without conflict.”   McKinney v. Virginia Surgical Assocs.,
    P.C., 
    284 Va. 455
    , 460, 
    732 S.E.2d 27
    , 29 (2012).
    Code § 36-96.16(B) enables an “aggrieved person” to
    intervene in the Commonwealth’s civil action: “Any aggrieved
    person with respect to the issues to be determined in a civil
    action [filed by the Attorney General after referral from the
    FHB] may intervene as of right.”    This subsection does not
    set forth a specific limitations provision for claims made
    33
    through intervention by aggrieved persons.   See Code § 36-
    96.16(B).
    However, Code § 36-96.18(A), which permits “aggrieved
    person[s]” to file original civil actions alleging
    “discriminatory housing practice[s],” does contain a
    limitations period.   Subsection (B) provides,
    An aggrieved person may commence a civil action
    under § 36-96.18 A no later than 180 days after the
    conclusion of the administrative process with
    respect to a complaint or charge, or not later than
    two years after the occurrence or the termination
    of an alleged discriminatory housing practice,
    whichever is later.
    Code § 36-96.18(B).   The statutory language gives no
    indication that an intervenor’s civil action should be immune
    from the statute of limitations normally applicable to claims
    brought by aggrieved persons.   In fact, Code § 36-96.16(B)
    uses the same term, “aggrieved person,” to describe the
    intervenor as is used in Code § 36-96.18(B) to describe the
    private party plaintiff.
    We note that this Court has applied a statute of
    limitations in one statute to an action allowed to be filed
    in intervention pursuant to a different statute.   In
    Commonwealth Mechanical Contractors, Inc. v. Standard Federal
    Savings & Loan, 
    222 Va. 330
    , 332, 
    281 S.E.2d 811
    , 812 (1981),
    we held that the limitations period in Code § 43-17 applied
    to “a lienor’s intervening petition in a suit to enforce a
    34
    mechanics’ lien” filed pursuant to Code § 43-22.    The
    limitations period in Code § 43-17 applied to suits to
    enforce liens, but it did not expressly refer to Code § 43-
    22.   Id.   As noted by this Court, the “common history” of
    Code §§ 43-17 and -22 dictated they should “be interpreted in
    light of [each] other.”    Id.   We observed that intervening in
    an existing action as a means of asserting new claims was
    “the equivalent of instituting a suit under Code § 43-17.”
    Id.
    Like the statutes at issue in Commonwealth Mechanical
    Contractors, Code §§ 36-96.16 and -96.18 are interrelated.
    Pursuant to these statutes, an aggrieved person may choose to
    intervene in a civil action filed by the Attorney General
    alleging a discriminatory housing practice on behalf of the
    aggrieved person or file an original claim alleging a
    discriminatory housing practice on his or her own behalf.
    See Code §§ 36-96.16 (A) and (B); -96.18(A).    When an
    aggrieved person not only intervenes in a civil action, but
    also files a new claim not previously asserted, the
    applicable statute of limitations applies to that new claim.
    Therefore, we hold that the circuit court did not err in
    applying the statute of limitations in Code § 36-96.18 to the
    Fishels’ additional claims brought in a new complaint filed
    upon intervention.
    35
    3.     Continuing Violations
    Finally, the Fishels claim that the circuit court erred
    in determining that Windsor Plaza’s alleged violations of
    Code §§ 36-96.3(A)(8) and (9) and 
    42 U.S.C. §§ 3604
    (f)(1) and
    (2) were not continuing violations.      They maintain that
    Windsor Plaza continues to discriminate against them in the
    sale of their condominium unit as well as continues to make
    housing unavailable by “operat[ing] a condominium premises
    that does not provide the accessible garage parking spaces
    required by [law].”    Because Windsor Plaza continues to
    operate a condominium that lacks handicap-accessible parking
    while benefitting from the payment of the Fishels’
    condominium fees, the Fishels argue that “the statute of
    limitations does not bar [their] claims” because Windsor
    Plaza’s latest discriminatory act falls within the statute of
    limitations period.
    Windsor Plaza responds that the violations alleged by
    the Fishels are continuing effects, not continuing
    violations.    Windsor Plaza contends that its alleged
    violations are the continuing effects of the developer’s
    assignment of disabled parking spaces to individual unit
    owners and cannot extend the statute of limitations.
    The circuit court’s determination that the Fishels did
    not allege continuing violations presents a mixed question of
    36
    law and fact that this Court reviews de novo.   See Chalifoux,
    281 Va. at 696, 
    708 S.E.2d at 837
    .   “In our review of the
    circuit court's application of the law to the facts, we give
    deference to the circuit court's factual findings and view
    the facts in the light most favorable to . . . the prevailing
    party below.”   
    Id.
    In addition to their reasonable accommodation claims,
    the Fishels’ complaint alleged that Windsor Plaza
    discriminated against them in violation of Code §§ 36-
    96.3(A)(8) and (9) and 
    42 U.S.C. §§ 3604
    (f)(1) and (2).    Code
    §§ 36-96.3(A)(8) and (9) make unlawful the following
    discriminatory housing practices:
    8. To refuse to sell or rent, or refuse to
    negotiate for the sale or rental of, or otherwise
    discriminate or make unavailable or deny a dwelling
    because of a handicap of (i) the buyer or renter,
    (ii) a person residing in or intending to reside in
    that dwelling after it is so sold, rented or made
    available, or (iii) any person associated with the
    buyer or renter;
    9. To discriminate against any person in the
    terms, conditions, or privileges of sale or rental
    of a dwelling, or in the provision of services or
    facilities in connection therewith because of a
    handicap of (i) that person, (ii) a person residing
    in or intending to reside in that dwelling after it
    was so sold, rented or made available, or (iii) any
    person associated with that buyer or renter.
    See also 
    42 U.S.C. §§ 3604
    (f)(1) and (2) (containing
    substantially similar provisions).
    37
    The continuing violation doctrine is one in “which acts
    occurring outside the statute of limitations may be
    considered when there is a ‘fixed and continuing practice’ of
    unlawful acts both before and during the limitations period.”
    Scoggins, 718 F.3d at 271 (citation and internal quotation
    marks omitted).   One federal district court has explained the
    difference in continuing violations and continuing effects of
    past violations: “[A] continuing violation is occasioned by
    continual unlawful acts, not continual ill effects from an
    original violation.”   Moseke v. Miller & Smith, Inc., 
    202 F. Supp. 2d 492
    , 495 (E.D. Va. 2002) (citations and internal
    quotation marks omitted).
    In Moseke, the court concluded that the inaccessible
    features of three condominium complexes were “more akin to a
    continuing effect rather than a continuing violation under
    the FHA[A].”   
    Id. at 507
    .   Because the plaintiffs alleged
    design and construction claims under the FHAA and VFHL, the
    court reasoned that the last discriminatory act occurred when
    the defendants completed construction of the complexes.       
    Id.
    The court was not swayed by the plaintiff’s argument that the
    violation was ongoing because the condominiums continued to
    operate without disabled parking spaces.    
    Id. at 510
    .
    In this case, the circuit court correctly determined
    that the Fishels did not allege continuing violations of Code
    38
    §§ 36-96.3(A)(8) and (9) and 
    42 U.S.C. §§ 3604
    (f)(1) and (2).
    The violations alleged by the Fishels — allowing disabled
    parking spaces to be assigned to residents as limited common
    elements without reserving a handicap-accessible parking
    space for the Fishels — occurred at one point in time.    The
    Fishels’ not being able to use a disabled parking space is a
    continuing effect of having assigned all the handicap-
    accessible parking spaces to other owners before the Fishels
    bought their condominium.    Thus, the circuit court did not
    err in determining that the alleged discriminatory acts by
    Windsor Plaza are not continuing in nature but continuing in
    effect.    Therefore, the circuit court did not err in
    sustaining Windsor Plaza’s plea in bar to the Fishels’ claims
    under Code §§ 36-96.3(A)(8) and 9 and 
    42 U.S.C. §§ 3604
    (f)(1)
    and (2).
    4.    Windsor Plaza’s Cross Error:
    Attorney’s Fees
    Windsor Plaza argues that the circuit court abused its
    discretion by refusing to award it attorney’s fees against
    the Fishels.     Windsor Plaza contends that the Fishels’ claims
    were meritless.    It maintains that the Fishels filed six
    untimely claims, greatly expanding the scope of their lawsuit
    compared to the Commonwealth’s single claim.     Windsor Plaza
    further asserts that the Fishels did not assert their claims
    39
    in good faith because they were aware that their assigned
    parking space was inadequate when they purchased it and
    because they “knew or should have known” that the remainder
    of the parking spaces in the underground garages were
    assigned to other unit owners.
    The Fishels disagree that the VFHL authorizes an award
    of attorney’s fees to a prevailing defendant.   Furthermore,
    they insist that they asserted their claims in good faith and
    that the circuit court “properly weighed” each point raised
    by Windsor Plaza.   The Fishels claim that they helped Windsor
    Plaza avoid extra expense by intervening in the
    Commonwealth’s lawsuit instead of filing their claims
    separately.   According to the Fishels, the circuit court
    “specifically found” that Fishel was entitled to an
    accommodation and that their claims were not meritless merely
    because the statute of limitations barred the claims.
    This Court reviews a trial court’s refusal to award
    attorney’s fees for abuse of discretion.    Lynchburg Div. of
    Soc. Servs. v. Cook, 
    276 Va. 465
    , 484, 
    666 S.E.2d 361
    , 370
    (2008).   A trial court may abuse its discretion by failing to
    consider a “relevant factor that should have been given
    significant weight”; by considering “an irrelevant or
    improper factor [and giving it] significant weight”; or by
    “commit[ting] a clear error of judgment.”   Robinson-Huntley
    40
    v. George Washington Carver Mut. Homes Ass’n, 
    287 Va. 425
    ,
    432, 
    756 S.E.2d 415
    , 420 (2014) (citation and internal
    quotation marks omitted).   A trial court may also abuse its
    discretion by basing its decision on an erroneous legal
    conclusion.   Cook, 276 Va. at 484, 
    666 S.E.2d at 371
    .
    Code § 36-96.16(D) states, “In any court proceeding
    arising under this section, the court, in its discretion, may
    allow the prevailing party reasonable attorney’s fees and
    costs.”   A “prevailing party” is “[a] party in whose favor a
    judgment is rendered, regardless of the amount of damages
    awarded.”   Sheets v. Castle, 
    263 Va. 407
    , 413, 
    559 S.E.2d 616
    , 620 (2002) (citation and internal quotation marks
    omitted).   Because the circuit court granted Windsor Plaza’s
    plea in bar and entered judgment in its favor, it is a
    “prevailing party” for purposes of Code § 36-96.16(D).
    In denying Windsor Plaza’s claim for attorney’s fees,
    the circuit court found that the Fishels asserted their
    claims in good faith.   The circuit court noted that the FHB
    found reasonable cause to believe Windsor Plaza had committed
    a discriminatory housing practice and the Attorney General
    filed a civil action based on the FHB’s determination.
    Furthermore, it found the Fishels reasonably chose to
    intervene in the Commonwealth’s suit rather than file a
    separate lawsuit and asserted their federal and state claims
    41
    in the same action.    The circuit court opined that their
    claims were not meritless simply because they were barred by
    the statute of limitations.    Although the court acknowledged
    the expense Windsor Plaza had incurred in defending itself
    during the litigation, it pointed out that the policy behind
    fair housing laws seeks to encourage private enforcement.
    The circuit court considered relevant factors and duly
    weighed them.   Windsor Plaza fails to identify any improper
    factor or erroneous legal conclusion that the circuit court
    used in reaching its decision.    Therefore, we cannot say that
    the circuit court abused its discretion in refusing to award
    attorney’s fees to Windsor Plaza.
    Conclusion
    For the reasons stated, we dismiss the Commonwealth’s
    assignment of error claiming that the circuit court erred in
    dismissing “the four individual defendants” because the
    Commonwealth failed to join all of these defendant parties in
    its appeal.    We affirm the circuit court’s rulings that the
    evidence relating to conversion of the bicycle storage space
    into an accessible parking space supported a claim for
    reasonable modification under Code § 36-96.3(B)(i), rather
    than a claim for reasonable accommodation under Code § 36-
    96.3(B)(ii).    We also affirm the circuit court’s ruling
    granting Windsor Plaza’s motion to strike.    However, we hold
    42
    that although the error was harmless, the circuit court erred
    in ruling that Windsor Plaza’s request for attorney’s fees
    against the Commonwealth under Code § 36-96.16(D) was not
    barred by sovereign immunity.
    As for the Fishels’ appeal, we affirm the circuit
    court’s sustaining of Windsor Plaza’s plea in bar to the
    Fishels’ additional claims because the statutes of
    limitations had expired when the Fishels filed their
    intervening complaint.     The Fishels’ claims do not concern
    continuing violations, and the claims accrued on August 23,
    2007.    Thus the statutes of limitations in Code § 36-96.18
    and 
    42 U.S.C. § 3613
    (a)(1)(A) bar the Fishels’ claims brought
    pursuant to Code §§ 36-96.3(A)(8) and (9) and 
    42 U.S.C. §§ 3604
    (f)(1), (2) and (3)(B).     Finally, the circuit court did
    not abuse its discretion in refusing to award Windsor Plaza
    attorney’s fees against the Fishels.
    Record No. 131806 – Affirmed in part,
    reversed in part,
    and final judgment.
    Record No. 131817 – Affirmed.
    43