Arizona Court of Appeals Division One Holds That Homeowners Association is Not Obligated to Make Certain Common Areas of Its Development Accessible to Disabled Homeowners.

The Nolans own two lots in the Starlight Pines subdivision. The Nolans alleged that Starlight had not done enough to make its community building accessible to Mr. Nolan, who is wheelchair-bound, and had made the neighboring greenbelt areas inaccessible to Mr. Nolan by installing gates, moving boulders and failing to properly grade the surface area. Based on these allegations, they sued Starlight for violations of Arizona Fair Housing Act, Arizona with Disabilities Act, and the Declaration of Covenants, Conditions and Restrictions recorded on the Nolans’ property. The trial court granted Starlight’s motion for summary judgment; the Nolans appealed.

The Arizona Appeals Court affirmed the trial court’s grant of summary judgment in Starlight’s favor, finding that (1) the ADA does not apply to the Starlight common areas into which the general public is not invited because they are not public accommodations; (2) the Nolans did not state a claim under the FHA because they had not made any reasonable accommodation requests, as required by A.R.S. 41-1491.19; (3) there was no breach of the CC&Rs because the Nolans’ right to use and “enjoy” their property did not obligate Starlight to make whatever accommodations might be required to access the common areas (and, in fact, Starlight had made several requested accommodations); and (4) the Nolans had not presented any evidence that the new gates in the fence abutting the greenbelt substantially and unreasonably interfered with their use and enjoyment of their property. The Arizona Appeals Court also affirmed the award of attorneys’ fees to Starlight.

Presiding Judge Johnsen authored the opinion, with Judges Hall and Judge Snow concurring.