Fishel v. Windsor Plaza Condo. Ass'n

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