Wheelchair user can proceed with suit over Towson dorm

Daily Record, The (Baltimore), May 29, 2008 by Brendan Kearney

A federal judge in Baltimore has refused to throw out a would-be Towson University student's lawsuit over accessible housing at a dorm that was built in 2000.

The school, the residence hall's developer and its management firm all claimed that federal laws barred Mark Kuchmas' suit over design and construction issues once the building had been up for two years, even though Kuchmas was not shown a unit until January 2006.

However, U.S. District Judge Richard D. Bennett decided the time to bring suit under the federal Fair Housing Act and other laws starts ticking at the time of the alleged discriminatory action, not when construction of the building is completed.

While Bennett's May 15 ruling appears to have nudged the case toward settlement, question of the time limit is far from settled and could be the subject of U.S. Supreme Court consideration before long, according to attorneys in this case and others.

"It's probably as important an issue that exists today under the Fair Housing Act, and I think you'll see more litigation, more cases dealing with it," said Andrew D. Levy, Kuchmas' attorney.

Stephen Z. Chertkof, a civil rights litigator in Washington who has brought actions under the Americans with Disabilities Act, said requiring prospective plaintiffs to file suit within two years of a building's completion would lead to "absurdity."

"Suppose you're a wheelchair user in eighth grade, and Harvard's building a new dorm," Chertkof said. "If you're an optimist, you've got to sue Harvard."

The 4th U.S. Circuit Court of Appeals, which includes Maryland, has not ruled on the question of the statute of limitations as applied to design and construction claims under the Fair Housing Act, the Americans with Disabilities Act or the Rehabilitation Act. Kuchmas sued under the latter two federal laws as well.

The 6th U.S. Circuit Court of Appeals, which consists of states between Michigan and Tennessee, ruled the "limitations period will depend on the specific circumstances of each case," which is consistent with Bennett's ruling, said Levy, of Brown, Goldstein & Levy LLP in Baltimore.

But significantly, the 9th U.S. Circuit Court of Appeals ruled to the contrary on May 13 -- the same day Bennett heard arguments.

"Although the ill effects of a failure to properly design and construct may continue to be felt decades after construction is complete, failing to design and construct is a single instance of unlawful conduct," ruled the 9th Circuit, which consists of Western states and generally takes a less restrictive approach.

"The fair housing advocates are an organized group and file amicus briefs in these types of cases, and I wouldn't be at all surprised if they appeal the 9th Circuit case further, to the Supreme Court," said Eric Hemmendinger, who is representing the dorm owner and manager.

Hemmendinger, of Shawe & Rosenthal LLP in Baltimore, declined to comment on the Kuchmas case. Assistant Attorney General Carolyn W. Skolnik and a Towson University spokeswoman deferred to university Counsel Michael A. Anselmi, who is out of the office this week.

Continuing duty

Hemmendinger represents Mobile, Ala.-based Collegiate Housing Foundation, which owns Millennium, developer Capstone Development Corp., and two Capstone subsidiaries that manage the dorm, all based in Birmingham, Ala.

Boca Raton, Fla.-based PGAL Architects Inc., which designed Millennium Hall, was dismissed from the case for statute of limitations reasons in September, and the remaining defendants claimed there was no difference between the architects' liability and their own.

Bennett rejected that argument, first under the FHA, but then under the other laws.

"[A] public university has a continued responsibility under the ADA to provide accessible housing to individuals with disabilities and ... the statute of limitations began to run not at the completion of construction of Millennium Hall but rather at the rental of an inaccessible unit," he wrote.

Kuchmas, now 28, uses a wheelchair due to a degenerative neuromuscular condition.

He filed suit in December 2006 -- six years after the five-story brick dorm off Osler Drive was completed but less than a year after he found he was unable to use the bathroom and shower area or maneuver around the desk in his accessible unit.

Kuchmas decided not to enroll at the university after touring the dorm and rejected a later offer of accessible housing from the university. He has since attended classes at the Community College of Baltimore County in Essex and plans to study criminal justice, Levy said.

"Mark's position up to now has been that he's not going to come back based on their bald representation and that he wants them to bring the campus into compliance, or specifically Millennium Hall, before he'll consider coming back," said Levy.

Right to sue challenged

That position led the defendants to challenge Kuchmas' standing, or right to pursue the case, last October.

Levy then enlisted four new co-plaintiffs -- two Towson students who don't use wheelchairs, a lecturer and Baltimore Neighborhoods Inc., a local fair housing nonprofit -- each of whom he identified in his amended complaint filed last month as an "aggrieved person" under federal law.