Whitney M. Woodworth

Statesman Journal

A federal judge has ruled that a Keizer homeowners' association violated state and federal fair housing laws by not accommodating a family of former residents of McNary Estates, whose daughter has multiple disabilities.

Gary and Renee Kuhn bought a home in the Keizer neighborhood in 2005. Five years later, their daughter, Khrizma, 34, began living with the couple full time. The Kuhns are the legal guardians for their daughter, who has Down syndrome and autism, uses a wheelchair outside the home and suffers from severe bowel incontinence.

Her incontinence problems worsened in 2014. Because she needs to be near a toilet at all times, the Kuhns and their medical providers decided in March 2015 that a motor home would be the best way for Khrizma to travel. She could always be near a restroom and use the motor home's shower in case she soiled herself.

The Kuhns asked the McNary Estates Homeowner's Association for an exception to a rule preventing parking a motor home in their driveway, according to the lawsuit filed in U.S. District Court.

That request was not granted. After unsuccessfully trying to reverse that decision, the Kuhns sold their home and moved to Woodburn. The family filed a lawsuit in federal court in January 2016, alleging that the homeowner's association violated fair housing laws by not accommodating their daughter's needs. Almost exactly a year later, U.S. District Judge Ann Aiken ruled in their favor.

"(The Kuhns) are feeling very vindicated," said Dennis Steinman , the family's lawyer.

Not only are the Kuhns feeling justice for the years of strife and distress they endured, they also feel they spoke up for the disabled community. They stood up for their rights, Steinman said.

"Unfortunately, too many people who are subjected to discrimination just accept it," he said.

A jury trial will determine damages. The trial is not scheduled, but Steinman said he expects it to go forward in 2017. Representatives from the homeowners' association did not reply to requests for comment.

The lawsuit asked the court to order the McNary Estates Homeowner's Association to take action to provide equal access to people with disabilities and award an unspecified amount of compensatory and punitive damages.

During the dispute in 2015, the HOA's lawyer, Kevin Harker , proposed two alternatives: park the motor home off-site or install a chemical toilet in a van.

The Kuhns decided neither of those would work because Gary took the family car to work. During work hours, she couldn't get to a motor home parked off-site. Their daughter would also be without a bathroom when traveling to the site. Unlike a motor home, the van wouldn't have a shower, in case Khrizma soiled herself, or space to lie down, which she needs for her scoliosis.

The HOA board suggested the Kuhns use mediation to resolve the issues, which the Kuhns declined.

According to the lawsuit, Renee wrote the following in an email:

"Khrizma's bowels are NOT up for discussion in mediation. Mediation is for barking dogs and fence line issues. Our reasonable request for medical variance to park a daily use, medical transport RV on our driveway is federally protected, as is the timeliness of your response, which has been severely delayed."

The HOA responded, saying they were not legally required to grant the request because it related to transportation and not the ability to use or enjoy the home itself.

On the Kuhns' behalf, the Fair Housing Council of Oregon sent a letter to Harker providing legal support for the request, including guidance from the federal departments of Justice and Housing and Urban Development that said parking of vehicles is covered by the Fair Housing Act because part of living somewhere includes being able to travel to and from the home.

Before they decided to move, the Kuhns purchased a motor home and began parking it in their driveway. Soon after, their neighbor complained that the vehicle obscured their view of oncoming traffic.

The Kuhns ordered a parabolic mirror and offered to hire a contractor to install it for their neighbor, but she declined the offer. The Kuhns reported experiencing hostility from their neighbors because of the issue. The lawsuit also claimed that the Fountains homeowner's association, a part of McNary Estates, held meetings in homes that were not wheelchair accessible. The Keizer Times reported that mediation resulted in the Fountains HOA paying monetary damages of $25,000. Members of the Fountains board, and another homeowners' board, were required to attend fair housing training and to review and adoption of "reasonable accommodation procedures."

In September 2015, the Kuhns sold their home after spending more than $10,000 in repairs.

The family had to stay in a hotel for about a month until they could move into their new home. The hotel stay was a stressful, difficult time for the family, according to the lawsuit. Out of her home and usual routine, Khrizma had anxiety, worsened incontinence and was frequently aggressive.

"Additionally, although Khrizma is generally non-verbal, she communicated the words 'crying' and 'go home' to her parents," the claim stated.

Less than two weeks after moving into the hotel, a doctor diagnosed Gary Kuhns with anxiety as an acute reaction to exceptional stress.

The family now lives at a home in Woodburn, where they are able to park the motor home out front. Aiken ruled the Kuhn family proved the motor home was necessary and asking for an accommodation was a reasonable request.

"We are thrilled with the judge's decision," Gary Kuhn said.

Steinman said he expects the ruling to have a far-reaching impact.

"(It's) a strong and terrific win for the disabled in Oregon," he said.

The ruling makes it clear that housing protections extend beyond the four walls of a home, he said, and "shows homeowner's associations that the fair housing act does apply to them and they need to respect it."

Email wmwoodwort@statesmanjournal.com, call 503-399-6884 or follow on Twitter @wmwoodworth

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