Settlement reached in Towson dorm suit

Daily Record, The (Baltimore), Sep 22, 2008 by Brendan Kearney

Three years after Mark Kuchmas successfully applied to Towson University -- only to find his campus dorm wheelchair-inaccessible - - the school and the dorm owner and manager have settled his federal lawsuit, memorialized in a sweeping consent judgment filed Friday.

Capstone Development Corp., the Birmingham, Ala.-based developer whose subsidiaries manage the Millennium Hall dorm, has agreed to pay Kuchmas $50,000 for his trouble and $250,000 to his attorneys for their work on his behalf. Capstone has also promised to provide him four academic years worth of free accessible campus housing and any tuition beyond what is covered by scholarships or non-loan financial aid Kuchmas is able to secure.

Furthermore, the developer has agreed to a long list of renovations and retrofits at Millennium and a neighboring dorm, West Village, where Kuchmas would live upon his return. And Capstone must consult an accessibility expert before undertaking any projects in Maryland over the next four years.

For its part, Towson has guaranteed Kuchmas admission to the school and disability accommodations, including transportation to class.

"We got what we needed," said Andrew D. Levy, Kuchmas' lawyer.

All that remains now is for U.S. District Judge Richard D. Bennett to approve the terms of the settlement, which Levy said is "unlikely to be a problem."

Despite the defendants' concessions, however, Levy said Kuchmas is "still upset by the treatment, the difficulties he's had" and has not yet decided if he wants to be a Tiger twice. The 29-year-old Nottingham resident recently completed an associate's degree in general studies at the Community College of Baltimore County at Essex, according to Levy.

"I hope he returns to Towson because it's a very good deal for him, and Towson seems committed to ... doing the right thing," said Levy, of Brown, Goldstein & Levy LLP.

Flawed design

Four co-plaintiffs -- two Towson students who don't use wheelchairs, a lecturer and Baltimore Neighborhoods Inc. -- will also receive settlement payments. Levy recruited them to join the suit earlier this year after Kuchmas expressed his intention not to return to Towson, which elicited standing -- right to sue -- arguments from the defendants.

Under the settlement, the fair-housing nonprofit will get $1,000 and the individuals will each get $500.

Eric Hemmendinger of Shawe Rosenthal LLP, an attorney for Capstone, declined to comment on the settlement. Michael A. Anselmi, counsel for the university, did not return a call for comment Friday.

Kuchmas, who uses a wheelchair due to a degenerative neuromuscular condition, filed suit under the Fair Housing Act, the Americans with Disabilities Act and the Rehabilitation Act 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.

In May, Bennett denied the defendants' request to dismiss Kuchmas' lawsuit, which was based on arguments that federal law required suits over a building's design to be filed within two years of the building's construction. Federal appellate courts are split on the time-limit issue under these federal laws.

The parties announced a settlement in principle in late July, but had to reduce the specifics to writing over the second half of the summer.

A lasting benefit

While Levy is happy he will be paid for the hours he spent and the money his firm spent on the case, he insisted his fees award, which he said was the subject of considerable negotiation, is "not a windfall."

"At a normal rate, that represents a haircut ... not our full bill," he said, adding Kuchmas will not be required to pay the balance. "We agreed to [the $250,000 figure] in an effort to get the settlement done."

The exact architectural changes also had to be hashed out, with the assistance of a compliance expert.

"It took a lot of time to cross all the t's and dot all the i's," Levy explained.

The modifications include lowering counters in the common areas of both buildings and clearing wall-mounted equipment that would obstruct wheelchair passage. Some of the work has already been completed, some will be done this school year, and "the heavy lifting, the moving of walls" is scheduled for next summer, Levy said.

"The benefit of the agreement is not just to current Towson students but to Towson students extending many years into the future," Levy emphasized. "Mr. Kuchmas, because he chose to take a stand, he's done a lot of good for a lot of people, people he'll never know."