Newman v. Nazcr Trac Prop. Owners Ass'n, Inc.

601 F.Supp.3d 357

Lisa NEWMAN, Michael Newman, S.N., E.N., and C.N., Plaintiffs,

v.NAZCR TRAC PROPERTY OWNERS ASSOCIATION, INC., and Kevin Burt, Defendants.

Case No. 21-C-945

United States District Court, E.D. Wisconsin.

Signed May 3, 2022

Victoria Lynn Davis Davila, Robert Theine Pledl, Davis & Pledl SC, Milwaukee, WI, for Plaintiffs.

Philip J. Danen, Roels Keidatz & Fronsee LLP, De Pere, WI, for Defendant Nazcr Trac Property Owners Association Inc.

Thomas J. Lonzo, Rose & de Jong SC, Milwaukee, WI, for Defendant Kevin Burt.

David R. Hassel, Hassel Law, Green Bay, WI, for Defendants.

DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

William C. Griesbach, United States District Judge Plaintiffs Lisa Newman, Michael Newman, S.N., E.N., and C.N., brought this action against Defendants Nazcr Trac Property Owners Association, Inc., and Kevin Burt, alleging violations of the Fair Housing Amendments Act (FHAA), 42 U.S.C. § 3601, et seq. , arising out of Plaintiffs’ desire to build a backyard fence for their autistic children. Plaintiffs allege that Defendants have wrongfully denied their requests to build a backyard fence as a reasonable accommodation under the FHAA. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Before the Court is Plaintiffs’ motion for preliminary injunction. Dkt. No. 25. For the following reasons, Plaintiffs’ motion will be granted.

BACKGROUND

Plaintiffs Lisa and Michael Newman own a single-family residence in De Pere, Wisconsin, and reside there with their children, six-year-old S.N., five-year-old E.N., three-year-old C.N., and one-year-old T.N. Compl. ¶ 5, Dkt. No. 1-2. Nazcr Trac, LLC, the developer of the subdivision in which Plaintiffs reside, established by-laws that created Defendant Nazcr Trac Property Owners Association, Inc. (the Association). Id. at ¶ 13; see also Dkt. No. 27-3. Defendant Kevin Burt is the President of the Association. Compl. ¶ 12. The by-laws provide that the lots in the subdivision should be "developed ... in accordance with the restrictive covenants contained herein and in compliance with all building restrictions of record with the City of De Pere." Id. The restrictive covenants, filed with the Brown County Register of Deeds, contains a covenant that provides: "No fences of any kind shall be allowed." Dkt. No. 27-2 at 4. Importantly, the by-laws give the Association the power to "enforce any and all covenants, restrictions and agreements applicable to the participatory parties." Dkt. No. 27-3 at 2.

The Newmans purchased their home in the Nazcr Trac subdivision in 2017, prior to any of their children being diagnosed with Autism. Newman Decl. ¶ 4, Dkt. No. 26. Soon after they purchased the home, however, S.N. was diagnosed with Autism. S.N. has significant speech delays, poor social skills, some academic delays, and major issues with elopement. Id. at ¶ 5. In 2018, E.N. was diagnosed with Autism. Id. at ¶ 6. E.N. is non-verbal, uses an electronic communication device, is approximately two grade-levels behind others her age, attends school half-time, and has significant issues with elopement. Id. In 2020, C.N. was also diagnosed with Autism. Id. at ¶ 7. C.N. has speech delays and poor social skills, but does not have significant academic delays. Id. at ¶ 8. As a result of their diagnoses, S.N., E.N., and C.N. are "unable to understand dangerous situations or monitor their own safety" and "require extra supervision to prevent them from running away." Id. at ¶ 10. All three children have run away from the Newmans or other caregivers on multiple occasions despite efforts to closely supervise them. Id. at ¶ 12.

In 2019, S.N. and E.N.’s health care providers recommended that the Newmans construct a fence in their backyard for safety reasons. See Dkt. Nos. 26-3–26-6. Seeking to do just that, the Newmans emailed Kevin Burt on July 24, 2019, informing Burt that their two eldest children had received disability diagnoses and, as a result, required a fence in the backyard to keep them safe. Dkt. No. 26-1 at 2. The Newmans acknowledged that a restrictive covenant prevented them from building a fence, but requested that Burt inform them of the necessary steps to get a fence approved. Id. Burt responded on August 4, 2019, and told the Newmans that the Association's board would have a meeting that day to discuss the request, but neither Burt nor the Association responded to the request. Id. at 1; Compl. ¶ 21. Months later, however, the Newmans were told by a neighbor that the Association had denied their request. Newman Decl. ¶ 19.

The Newmans renewed their efforts on December 27, 2020, this time sending a formal letter to Burt. See Dkt. No. 26-2. The letter requested that the Association allow the Newmans to build a fence as a reasonable accommodation under the FHAA. Id. at 1. The Newmans enclosed letters from their children's medical providers and a memo from the United States Department of Justice and United States Department of Housing and Urban Development regarding obligations for housing providers under the FHAA. Id. The letter concluded by requesting that the Association respond by January 10, 2021. Id. at 2. Three days later, on December 30, 2020, the Newmans emailed Burt to follow-up on the letter. Dkt. No. 26-8. Despite their formal letter request and follow-up email, the Newmans never received a response from the Association or Burt. Instead, on March 11, 2021, the Association sent a letter to all of its members, stating, among other things, that "the restrictive covenants cannot be changed and requests to go outside of the covenants will be turned down by the board as we must abide by them and do not have authority to make exceptions." Dkt. No. 34-1; Newman Decl. ¶ 25.

As a result of the Association's and Burt's failure to respond to their request, Plaintiffs initiated this lawsuit. They assert that Defendants’ policy of "refusing to consider requests for reasonable accommodation and stating in advance that such requests will automatically be denied intentionally discriminates against and has a disparate impact on individuals with disabilities and their families." Compl. ¶ 34. This policy, Plaintiffs claim, has left them "unable to play outside and otherwise enjoy their backyard in the same way as other Nazcr Trac residents who do not have a family member with disabilities." Id. at ¶ 35. Plaintiffs allege that Defendants have violated the FHAA by "imposing terms, conditions or privileges in the provision of services of facilities in connection with the Plaintiffs’ dwelling because of disability" and by "refusing to make reasonable accommodation in the rules, policies, practices, or services, when such accommodations were necessary to afford Plaintiffs an equal opportunity to use and enjoy a dwelling," in violation of 42 U.S.C. §§ 3604(f)(2) and 3604(f)(3)(B). Id. at ¶ 37. At this stage, Plaintiffs request the Court to "preliminarily enjoin Defendants from enforcing or encouraging others to enforce on their behalf the provision in the Nazcr Trac restrictive covenants that prohibits fences." Dkt. No. 25 at 1.

LEGAL STANDARD

"A preliminary injunction is an exercise of very far-reaching power, never to be indulged ... except in a case clearly demanding it." Cassell v. Snyders , 990 F.3d 539, 544 (7th Cir. 2021) (internal quotation marks and citations omitted); see also Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ("A preliminary injunction is an extraordinary remedy never awarded as of right."). A plaintiff seeking a preliminary injunction must demonstrate "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter , 555 U.S. at 20, 129 S.Ct. 365.

ANALYSIS

A. Likelihood of Success on the Merits

Plaintiffs must demonstrate that they are likely to succeed on the merits of their FHAA claim. At this stage, they "need not show that [they] will definitely win the case," or even provide proof by a preponderance of the evidence. Ill. Republican Party v. Pritzker , 973 F.3d 760, 763 (7th Cir. 2020). Instead, it requires them to demonstrate how they "propose[ ] to prove the key elements" of their case. Id. Nonetheless, this is a "significant burden." Id.

Under 42 U.S.C. § 3604(f)(2), it is unlawful 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 with such dwelling, because of a handicap" of that person, a person residing or intending to reside in a dwelling, or any person associated with that person. Relevant here, "discrimination" includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). Also relevant here, "handicap" means "a physical or mental impairment which substantially limits one or more of such person's major life activities." 42 U.S.C. § 3602(h)(1).

As an initial matter, several items are not in dispute. First, there does not appear to be any dispute that S.N., E.N., and C.N. have a "handicap" within the meaning of the FHAA. The Defendants’ decision not to dispute this allegation is reasonable because Autism is one of the enumerated mental impairments in the FHAA regulations, see 24 C.F.R. § 100.201(a)(2), and Plaintiffs have introduced evidence demonstrating that S.N., E.N., and C.N. have substantial limitations in caring for themselves and learning. See Newman Decl. ¶¶ 5–7. Second, there is no dispute that Lisa and Michael Newman have standing to seek injunctive relief. The FHAA allows an "aggrieved person" to commence a civil action in an appropriate United States district court or state court no later than two...