Fishel v. Windsor Plaza Condo. Ass'n

• Court: Supreme Court of Virginia
• Decided: December 31, 2014
• Docket: 131817
• Status: Published

Opinion

PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA, EX REL. FAIR HOUSING BOARD

v. Record No. 131806

WINDSOR PLAZA CONDOMINIUM ASSOCIATION, INC., ET AL. OPINION BY JUSTICE S. BERNARD GOODWYN MICHAEL FISHEL, ET AL. December 31, 2014

v. Record No. 131817

WINDSOR PLAZA CONDOMINIUM ASSOCIATION, INC.

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Joanne F. Alper, Judge

In these consolidated appeals, we consider various issues

arising under the Virginia Fair Housing Law, Code § 36-96.1 et

seq. (VFHL), and the Federal Fair Housing Amendments Act of

1988, 42 U.S.C. § 3601 et seq. (FHAA).

Background

On March 4, 2009, Michael Fishel (Fishel) filed

complaints with the Virginia Fair Housing Board (FHB) and the

United States Department of Housing and Urban Development

(HUD), alleging that Windsor Plaza Condominium Association

(Windsor Plaza) had discriminated against him in violation of

the VFHL and the FHAA. HUD transferred Fishel’s complaint to

the FHB.

On May 28, 2010, the FHB, after an investigation,

determined that reasonable cause existed to believe that Windsor Plaza had engaged in a “discriminatory housing

practice . . . in violation of . . . Code § 36-96.3(B)(ii).”

Pursuant to Code § 36-96.14, the FHB referred the charge to

the Attorney General on June 1, 2010.

On June 30, 2010, the Office of the Attorney General, on

behalf of the Commonwealth, filed a complaint against Windsor

Plaza in the Circuit Court of Arlington County. The complaint

alleged that Windsor Plaza had violated Code § 36-96.3(B)(ii)

by failing “to make reasonable accommodations in rules,

practices, policies, or services [that were] necessary to

afford [Fishel] equal opportunity to use and enjoy [his]

dwelling.”

On November 23, 2010, Fishel and his wife Eleanor

(collectively “Fishels”) moved to intervene in the

Commonwealth’s lawsuit pursuant to Code § 36-96.16(B). They

also lodged a “Complaint in Intervention” with the court on

the same date. In their Complaint in Intervention, the

Fishels alleged, as had the Commonwealth, that Windsor Plaza

had violated the VFHL by refusing their request for a

reasonable accommodation.

The Fishels also alleged additional causes of action.

They alleged that Windsor Plaza had discriminated against them

in violation of Code §§ 36-96.3(A)(8) and (9), and 42 U.S.C.

§§ 3604(f)(1), (2) and (3)(B). The circuit court granted the

2 Fishels’ motion to intervene and deemed their Complaint in

Intervention filed on January 28, 2011.

Windsor Plaza filed a plea in bar to the Fishels’

intervening complaint, arguing that the Fishels’ new state and

federal fair housing claims were barred by the applicable

statutes of limitations.

On April 5, 2012, pursuant to a court order granting the

Commonwealth leave to join “as additional defendants to this

action the . . . persons vested with the right to use the four

limited common element parking spaces in the Windsor Plaza

Condominium residential parking garages that are labeled ‘HC’

[i.e., handicapped] on the Windsor Plaza site plan and any

person that has a security interest in those four ‘HC’ parking

spaces,” the Commonwealth filed a second amended complaint.

It added eight individuals who owned interests in the four

parking spaces as defendants (collectively “individual parking

space owners”). 1 Not only did the Commonwealth add these

individuals as owners of the controverted parking spaces, it

also alleged that the individual parking space owners had

violated the VFHL by parking in the disabled parking spaces

1 The Commonwealth named Lois Ann Rossi, Edward and Virginia Scruggs, Winston and Maureen Moore, Alan and Kathleen Hickling, and Countrywide Home Loans, Inc. as additional defendants. Countrywide Home Loans, Inc. holds an interest in Alan and Kathleen Hickling’s handicapped parking space by virtue of a deed of trust.

3 that had been deeded to them with the purchase of their

condominiums in a manner inconsistent with the parking spaces’

designations on the site plan. The complaint stated, “This

non-conforming use contributes to the Defendant Association’s

refusal to make a reasonable accommodation as requested by the

Fishels.”

Lois Ann Rossi (Rossi), one of the individual parking

space owners, filed a plea in bar to the Commonwealth’s second

amended complaint, asserting that the statute of limitations

in Code § 36-96.16(A) barred the Commonwealth’s claim against

her and the other individual parking space owners.

The circuit court scheduled a hearing to address Windsor

Plaza’s special plea concerning the Fishels’ complaint and

Rossi’s special plea concerning the Commonwealth’s second

amended complaint. After a hearing on the pleas in bar, the

circuit court sustained Windsor Plaza’s plea in bar to the

Fishels’ complaint. It also sustained Rossi’s plea in bar and

dismissed the Commonwealth’s claims against all of the

individual parking space owners as being barred by the

applicable statute of limitations.

On March 4, 2013, the parties proceeded to trial on the

claim that Windsor Plaza violated Code § 36-96.3(B)(ii) by

failing to make reasonable accommodations in rules, practices,

policies or services that were necessary to afford Fishel

4 equal opportunity to enjoy his dwelling. At the close of the

Commonwealth’s case-in-chief, Windsor Plaza moved to strike

the Commonwealth’s evidence and for summary judgment. The

circuit court granted the motion.

At a later hearing to consider Windsor Plaza’s requests

for attorney’s fees, the circuit court determined that

sovereign immunity did not bar Windsor Plaza’s request for

attorney’s fees and costs against the Commonwealth pursuant to

Code § 36-96.16(D). Nevertheless, the court exercised its

discretion and declined to award Windsor Plaza attorney’s fees

against the Commonwealth. The court also declined to award

Windsor Plaza attorney’s fees against the Fishels.

The Commonwealth and the Fishels filed separate appeals,

which are both addressed in this opinion. Windsor Plaza

assigns cross errors to the circuit court’s denial of its

request for the award of attorney’s fees against the

Commonwealth and the Fishels.

Facts

Windsor Plaza Condominium is located in Arlington County

and is comprised of two condominium buildings, each with

underground parking garages. When the condominium was first

built, parking spaces in these garages were general common

5 elements. 2 The site plan for the buildings notes four parking

spaces for use by disabled persons. Those parking spaces were

designated as “HC” on the site plan.

In 1995, the developer of Windsor Plaza Condominium

executed an “Amendment to Condominium Instruments” document.

The amendment allowed the developer to assign the previously

general common element parking spaces as limited common

element 3 parking spaces. Pursuant to the amendment, the

developer deeded every parking space in the condominium’s

underground garages, including the four parking spaces

designated for use by disabled persons (hereinafter “disabled

parking spaces”), to individual unit owners “as a limited

common element for the exclusive use of the unit owner of such

condominium unit.”

Fishel suffers from “severe osteoarthritis” and must use

a wheelchair. In July 2007, the Fishels purchased a

condominium unit in the Taylor Street Building of Windsor

Plaza Condominium. The Fishels received a “resale package,”

which they reviewed carefully for two days before purchasing

their unit. In the resale package, a diagram of the parking

2 “Common elements” are “all portions of the condominium other than the units.” Code § 55-79.41. 3 A “limited common element” is “a portion of the common elements reserved for the exclusive use of those entitled to the use of one or more, but less than all, of the units.” Code § 55-79.41.

6 garages showed four disabled parking spaces. The documents in

the resale package also indicated that garage parking spaces

at the condominium were limited common elements and that the

developer had already assigned all of the parking spaces to

individual unit owners.

Before buying their condominium unit, the Fishels visited

the site and looked at the unit and underground parking

garage. The Fishels saw the parking space that would be

purchased with their condominium. They testified at trial

that they knew the space was not a disabled parking space and

that “[it] wasn’t going to meet [their] needs.” The Fishels

did not inquire about the availability of disabled parking

spaces in the garage before purchasing their condominium unit.

Soon after purchasing their condominium unit, the Fishels

contacted Joseph Tilton (Tilton), Windsor Plaza’s building

manager, and informed him that Fishel was unable to park his

van in their parking space. Tilton advised the Fishels to

park in one of the disabled parking spaces, which they did “a

couple times,” but the Fishels were soon informed that they

could not park in that space because it belonged to another

condominium unit owner.

On July 30, 2007, the Fishels emailed Tilton, asking for

“a larger parking space” in a better location. Windsor

Plaza’s Board of Directors (the Board) considered their

7 request at a board meeting, and Tilton relayed the Board’s

response to the Fishels by email on August 23, 2007:

The Board of Directors reviewed your request for a larger parking space at last night’s meeting. As all existing garage spaces are individually owned by unit owners, assigning a different parking space to your residence is beyond the authority of the Board. This does not preclude you from advertising your interest in trading parking spaces with another owner. If you would like to draft a flyer announcing your need for a larger space, we would be happy to post copies on both bulletin boards. Such a notice may facilitate an exchange of spaces, either as a casual agreement or as a permanent reassignment, based on the preferences of all parties involved.

Please contact us should you have any further concerns.

The Fishels responded to Tilton’s August 23, 2007 email

and asserted Fishel’s “right . . . to park in a handicapped-

designated space,” but they indicated that they were reluctant

to “go this route.” The Fishels’ email concluded, “Please ask

the Board to review this issue again in an expedited manner.

We need a parking space that we can actually use.”

The next email from Tilton, dated September 12, 2007,

related that the Board had met again and that “[a] copy of

your request is being sent to the Condominium’s counsel so he

may instruct us in how to best accommodate your needs.”

During the following months, the Fishels inquired

periodically about the status of their request. On May 7,

2008, Windsor Plaza’s attorney, Raymond Diaz (Diaz), informed

8 the Fishels by letter that Windsor Plaza could not force any

of the individual parking space owners to trade with them.

Diaz asserted that “it has proven impossible for the

Association to persuade the owner of the larger space to

conclude an arrangement permitting you the use of the larger

garage parking space.”

In the same letter, Diaz offered to help the Fishels

secure approval from the county to reserve a parking space on

the street outside their condominium building. The Fishels

rejected this proposal because in order to park on the street,

Fishel would have to exit his car into traffic. Moreover, the

curb was too steep, and the nearest entrance door was not

handicap-accessible.

Diaz wrote another letter dated August 10, 2009,

informing the Fishels that the owners of one of the disabled

parking spaces were willing to enter into a licensing

agreement that would allow the Fishels to use the disabled

parking space. The Fishels did not accept this offer because,

in the proposed agreement, the parking space owners reserved a

right to reclaim the disabled parking space if they sold their

condominium or if at some point they had a tenant who needed

the disabled parking space.

On March 4, 2009, the Fishels filed complaints with the

FHB and HUD. Thereafter, an investigator from the FHB visited

9 the condominium building. Fishel testified that while he was

in the garage with the investigator, Tilton walked by, and

Fishel raised with Tilton the idea of converting a bicycle

storage space, located in the garage, into an accessible

parking space. Tilton expressed concern that doing so would

be too expensive. Fishel testified that he offered to pay for

the “disabled logo and everything.” The circuit court found

that Fishel did not present any evidence that this option was

ever presented to the Board or its counsel.

Analysis

A. The Commonwealth’s Appeal (Record No. 131806)

The Commonwealth assigns error to the rulings of the

circuit court in (1) holding that the statute of limitations

barred the Commonwealth’s action against the individual

parking space owners; (2) ruling that the Commonwealth’s

evidence supported a claim for a reasonable modification

instead of a reasonable accommodation; (3) granting Windsor

Plaza’s motion to strike the Commonwealth’s evidence of

reasonable accommodation; and (4) ruling that Windsor Plaza’s

request for attorney’s fees under Code § 36-96.16(D) was not

barred by the doctrine of sovereign immunity. Windsor Plaza

assigns cross error to the circuit court’s refusal to exercise

its discretion to award Windsor Plaza attorney’s fees and

costs against the Commonwealth.

10 1. Necessary Parties

The Commonwealth argues that the circuit court erred in

ruling that the statute of limitations barred its action

against the individual parking space owners. It claims that

the use of disabled parking spaces by unit owners who are not

disabled is a “continuing violation” and that Windsor Plaza

created restrictive covenants running with the land, which

resulted in negative easements on the disabled parking spaces.

The Commonwealth notes that the Condominium’s Policy

Resolution No. 7 4 prohibits parking in disabled spaces without

a disabled license plate or placard and concludes that to the

extent that non-disabled unit owners park in the disabled

parking spaces they own, there is a continuing violation that

extends the statute of limitations in Code § 36-96.16(A).

In its prayer for relief, the Commonwealth seeks both a

declaratory judgment and a permanent injunction requiring

those with exclusive rights to use the four parking spaces

identified as “HC” parking spaces to make those spaces

4 Windsor Plaza’s parking policy (Policy Resolution No. 7) includes a provision stating, “No vehicles shall be parked in any General Common Element spaces that are reserved for handicap parking except vehicles displaying current handicap placards or license plates.” Policy Resolution No. 7 also authorizes the Board “from time to time and as available, [to] designate General Common Element parking spaces for special usage purposes (such as handicap parking spaces to accommodate disabled residents).”

11 available for use by all disabled residents. The circuit

court ruled that the individual parking space owners were

necessary parties to the Commonwealth’s action against Windsor

Plaza. In response thereto, the Commonwealth was allowed to

file the second amended complaint naming the individual

parking space owners as defendants. Rossi then filed a

special plea of the statute of limitations, and the circuit

court sustained that special plea and entered an order

determining that the Commonwealth’s actions against all of the

individual parking space owners were barred by the applicable

statute of limitations.

Rossi asks this Court to dismiss the Commonwealth’s

assignment of error concerning the circuit court’s ruling on

her special plea because the Commonwealth has not joined all

of the individual parking space owners in this appeal. Of the

eight individual parking space owners it named as defendants

in its second amended complaint, the Commonwealth has only

named Rossi in its appeal.

The Commonwealth does not assign error to the circuit

court’s determination that each of the individual parking

space owners was a necessary party; therefore, this ruling has

become “the law of the case and is binding on appeal.” See

Maine v. Adams, 277 Va. 230, 242, 672 S.E.2d 862, 869 (2009).

Because the Commonwealth alleges that the individual parking

12 space owners all violated the VFHL and the relief sought by

the Commonwealth involves the property interests of all of the

individual parking space owners, they each have an interest in

resisting the Commonwealth’s claim against them. An

appellant’s failure to join a necessary party in the appeal

compels dismissal of the appeal. Asch v. Friends of the Cmty.

of Mount Vernon Yacht Club, 251 Va. 89, 91, 465 S.E.2d 817,

818-19 (1996). Because the Commonwealth has failed to join

all the individual parking space owners as parties in its

appeal, we will dismiss the Commonwealth’s appeal concerning

the circuit court’s ruling on the plea in bar filed by Rossi

without further consideration.

2. Modifications and Accommodations under Code §§ 36-96.3(B)(i) and (ii)

In support of its claim that Windsor Plaza discriminated

against Fishel by failing to make reasonable accommodations in

rules, practices, policies or services that were necessary to

afford him equal opportunity to use and enjoy his dwelling,

the Commonwealth presented evidence that the Fishels mentioned

to Tilton that there was a common element bicycle storage area

in the parking garage that was large enough to be converted

into a parking space for Fishel. The circuit court ruled that

such request constituted a reasonable modification request

rather than a request for a reasonable accommodation.

13 The Commonwealth asserts that the circuit court erred in

ruling that the request for the creation of the disabled

parking space was not a request for an accommodation under

Code § 36-96.3(B)(ii). According to the Commonwealth, parking

is a service, and Fishel sought an accommodation in the

“rules, practices, and policies involving the provision of

that service.” The Commonwealth claims that modifications

involve “structural changes” while accommodations involve

“cosmetic changes” and that converting the bicycle space into

a disabled parking space for Fishel would require only

cosmetic changes. The Commonwealth further argues that

Windsor Plaza’s Policy Resolution No. 7 explicitly authorizes

the Board to convert a common elements area, such as the

bicycle space, into a limited common element parking space to

accommodate the needs of a disabled person. Hence, because

the Fishels’ request to convert the bicycle space into an

accessible parking space required cosmetic changes and an

alteration in Windsor Plaza’s parking policy, the Commonwealth

concludes that its evidence supported a reasonable

accommodation claim under Code § 36-96.3(B)(ii).

According to Windsor Plaza, parking is not a service at

the condominium because all parking spaces are limited common

elements and are assigned to individual unit owners. Windsor

Plaza argues that the circuit court correctly determined that

14 the Commonwealth’s evidence concerning the possible conversion

of the bicycle space supported a cause of action for a

reasonable modification because a “modification” is made to

“premises,” while an “accommodation” is made to “rules,

policies, practices, or services.”

Whether the Commonwealth’s evidence supported a cause of

action for failure to provide a reasonable accommodation under

Code § 36-96.3(B)(ii) requires statutory interpretation of the

VFHL. This Court reviews a trial court’s statutory

interpretation de novo, as a question of law. Collelo v.

Geographic Servs., Inc., 283 Va. 56, 66, 727 S.E.2d 55, 59

(2012). The primary goal of the Court in interpreting

statutes is to determine the General Assembly’s intent.

Sheppard v. Junes, 287 Va. 397, 403, 756 S.E.2d 409, 411

(2014). To do this, we examine the language contained in the

statute itself, if unambiguous, and apply its plain meaning.

See Rutter v. Oakwood Living Ctrs. of Va., Inc., 282 Va. 4,

10, 710 S.E.2d 460, 463 (2011).

The VFHL protects disabled persons from “unlawful

discriminatory housing practices.” See Code § 36-96.3(A)

(describing actions that qualify as “discriminatory housing

practices”). Code § 36-96.3(A)(9) provides,

It shall be an unlawful discriminatory housing practice for any person . . . [t]o discriminate against any person in the terms, conditions, or

15 privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith because of a handicap of . . . that person.

“Discrimination” is defined several ways in the VFHL.

Relevant to this appeal, Code § 36-96.3(B)(i) states that

“discrimination includes . . . a refusal to permit, at the

expense of the handicapped person, reasonable modifications of

existing premises occupied or to be occupied by any person if

such modifications may be necessary to afford such person full

enjoyment of the premises.” Code § 36-96.3(B)(ii) provides

that discrimination also includes “a refusal to make

reasonable accommodations in rules, practices, policies, or

services when such accommodations may be necessary to afford

such person equal opportunity to use and enjoy a dwelling.”

The Commonwealth only asserts a violation of Code § 36-

96.3(B)(ii). It insists that parking is a service and that

the Fishels requested a reasonable accommodation in that

service when they requested that Windsor Plaza convert the

bicycle space into an accessible parking space for them.

However, the plain meaning of the word “service” does not

encompass the underground garage parking scheme at Windsor

Plaza Condominium.

“Service” is “[l]abor performed in the interest or under

the direction of others; specif[ically], the performance of

16 some useful act or series of acts for the benefit of another,

usu[ally] for a fee.” Black’s Law Dictionary 1576 (10th ed.

2014). At the condominium, parking spaces have been assigned

to individual unit owners as property rights appurtenant to

their condominium units. These assigned parking spaces are

limited common elements, which are “reserved for the exclusive

use” of individual unit owners. Code § 55-79.41. Because

parking spaces are forms of real property at the condominium,

they are not acts or labor performed to benefit the unit

owners, and thus parking is not a service under Code § 36-

96.3(B)(ii).

To aid us in discerning the General Assembly’s intent,

we also look at surrounding words in the statute that can

indicate a term’s meaning. Newberry Station Homeowners Ass’n

v. Board of Supervisors, 285 Va. 604, 619-20 & n.9, 740

S.E.2d 548, 556-57 & n.9 (2013). In Code § 36-96.3(B)(ii),

“accommodations” is followed by “in rules, practices [and]

policies,” which indicates that accommodations involve

exceptions to intangible standards, procedures and customs.

On the other hand, the term “modifications” in Code § 36-

96.3(B)(i) is followed by the phrase “of existing premises”

and includes a requirement that the person requesting a

modification pay for the modification. The context of Code §

17 36-96.3(B)(i) indicates that physical alterations of premises

involve a modification rather than an accommodation.

We conclude the ruling of the circuit court is faithful

to the plain language of Code §§ 36-96.3(B)(i) and (ii).

There was no evidence at trial concerning what would be

involved in changing the bicycle storage space into a parking

space. However, the Commonwealth acknowledges that

converting the bicycle space into an accessible parking space

for Fishel would require physical alterations, although

slight, to the premises. Consequently, the circuit court did

not err in determining that the Commonwealth’s evidence

concerning the conversion of the bicycle space into an

accessible parking space supported a cause of action under

Code § 36-96.3(B)(i) for a reasonable modification rather

than a cause of action under Code § 36-96.3(B)(ii) for a

3. Sufficiency of the Evidence: Reasonable Accommodation Claim

The Commonwealth contends that it presented sufficient

evidence of a violation of Code § 36-96.3(B)(ii) to survive

Windsor Plaza’s motion to strike the evidence. The

Commonwealth asserts that the parties stipulated at trial

that Fishel is disabled and that it is necessary for him to

have an accessible parking space. According to the

18 Commonwealth, the evidence showed that Fishel asked for a

larger parking space in a different location. The

Commonwealth claims that in response Windsor Plaza proposed

“two flawed solutions” and “ignored” Fishel’s reasonable

request to convert the bicycle storage space into an

accessible parking space. It adds that even if all four

disabled spaces were being used by disabled people, 5 Windsor

Plaza would nevertheless be required under the VFHL to

consider converting the bicycle space into an accessible

parking space for the Fishels. The Commonwealth argues that

the Fishels’ request for an accessible parking space is

reasonable because Windsor Plaza is required by law to

provide disabled parking spaces.

By contrast, Windsor Plaza maintains that the evidence

showed that it offered the Fishels a reasonable accommodation

but that they rejected the offer. According to evidence at

trial, Windsor Plaza negotiated a licensing agreement in

which the owners of a disabled parking space would allow the

Fishels to use their space. Windsor Plaza insists that it is

not obligated to provide a permanent accommodation.

To assert a reasonable accommodation claim under the

VFHL, the plaintiff bears the burden to prove by a

5 There was no evidence presented at trial concerning whether the four designated “HC” spaces were being used by disabled individuals.

19 preponderance of the evidence that the requested

accommodation is reasonable and necessary to give a disabled

person the equal opportunity to use and enjoy housing. See

Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262,

272 (4th Cir. 2013) (stating the elements of a reasonable

accommodation claim under the FHAA). In the proceedings

below, the parties agreed that Fishel is disabled and needs

an accessible parking space in order to have an equal

opportunity to enjoy his condominium unit, but they disagreed

as to whether the Fishels requested a reasonable

accommodation.

The Fourth Circuit has recognized several factors a

court can use to determine whether an accommodation is

reasonable:

In determining whether the reasonableness requirement has been met, a court may consider as factors the extent to which the accommodation would undermine the legitimate purposes and effects of existing zoning regulations and the benefits that the accommodation would provide to the handicapped. It may also consider whether alternatives exist to accomplish the benefits more efficiently. And in measuring the effects of an accommodation, the court may look not only to its functional and administrative aspects, but also to its costs.

Bryant Woods Inn, Inc. v. Howard Cnty., 124 F.3d 597, 604

(4th Cir. 1997) (analyzing whether a request for an exception

to zoning regulations was reasonable). An accommodation is

not reasonable if it poses “undue financial and

20 administrative burdens or changes, adjustments, or

modifications to existing programs that would be substantial,

or that would constitute fundamental alterations in the

nature of the program.” See id. (citations and internal

quotation marks omitted). This is a “fact-specific inquiry.”

Scoggins, 718 F.3d at 272.

The Fishels asked for a larger parking space in a

different location. However, Virginia’s Condominium Act

permits the reassignment of limited common elements, such as

the parking spaces at issue, only with the consent of all

property owners affected by the reassignment. See Code § 55-

79.57(A). We hold that requesting, as an accommodation, the

reassignment of limited common element parking spaces

belonging to private individuals is unreasonable because

Windsor Plaza has no authority to confiscate property

belonging to one unit owner and to reassign that property to

another. See Groner v. Golden Gate Gardens Apartments, 250

F.3d 1039, 1046 (6th Cir. 2001) (“As a matter of law, the

[neighbor’s] rights did not have to be sacrificed on the

altar of reasonable accommodation.”) (alteration in original)

(citation and internal quotation marks omitted).

The Commonwealth also argues that its evidence showed

that Windsor Plaza failed to provide the Fishels with a

reasonable accommodation by refusing to convert the bicycle

21 storage space into an accessible parking space. However, as

stated previously, converting the bicycle space is a

modification “of existing premises,” not an accommodation “in

rules, practices, policies, or services.” Therefore, the

Commonwealth’s evidence concerning the bicycle space did not

prove a request for a reasonable accommodation.

The Commonwealth’s only evidence of an accommodation

request refused by Windsor Plaza was that of reassigning one

of the limited common element parking spaces to the Fishels.

Because Windsor Plaza does not have the authority to reassign

disabled parking spaces that are limited common elements

without the consent of the owner of the parking space, this

accommodation request was not reasonable, and we hold that

the Commonwealth failed to satisfy its burden of proving that

Windsor Plaza failed to provide a reasonable accommodation.

Consequently, the circuit court did not err in granting

Windsor Plaza’s motion to strike the Commonwealth’s evidence.

4. Sovereign Immunity

ruling that Windsor Plaza’s claim for attorney’s fees and

costs against the Commonwealth pursuant to Code § 36-96.16(D)

was not barred by the doctrine of sovereign immunity.

Whether the Commonwealth is protected by sovereign immunity

is a question of law that we review de novo. See City of

22 Chesapeake v. Cunningham, 268 Va. 624, 633, 604 S.E.2d 420,

426 (2004). Furthermore, whether the Commonwealth has waived

sovereign immunity depends upon the proper interpretation of

Code § 36-96.16(D), which is also a question of law reviewed

de novo by this Court. See Collelo, 283 Va. at 66, 727

S.E.2d at 59.

“[T]he doctrine of sovereign immunity . . . is alive and

well in Virginia.” Jean Moreau & Assocs. v. Health Ctr.

Comm’n, 283 Va. 128, 137, 720 S.E.2d 105, 110 (2012)

(alteration in original) (citation and internal quotation

marks omitted). “Sovereign immunity is a rule of social

policy, which protects the state from burdensome interference

with the performance of its governmental functions and

preserves its control over state funds, property, and

instrumentalities.” Id. (citation and internal quotation

marks omitted). Only the General Assembly can abrogate

sovereign immunity on behalf of the Commonwealth. Afzall v.

Commonwealth, 273 Va. 226, 230, 639 S.E.2d 279, 281 (2007).

When it chooses to do so, the “waiver . . . cannot be implied

from general statutory language but must be explicitly and

expressly announced in the statute.” Id. (citation and

internal quotation marks omitted).

Code §§ 36-96.16 and -96.17 create causes of action in

which the Commonwealth is the plaintiff in actions alleging

23 discriminatory housing practices. In this case, the

Commonwealth filed its civil action against Windsor Plaza

pursuant to Code § 36-96.16(A), which mandates,

Not later than thirty days after a charge is referred by the [FHB] to the Attorney General under § 36-96.14, the Attorney General shall commence and maintain a civil action seeking relief on behalf of the complainant in the circuit court for the city, county, or town in which the unlawful discriminatory housing practice has occurred or is about to occur.

(Emphasis added.) Thus, after receiving a referral from the

FHB, the Commonwealth must “commence and maintain a civil

action.” Id.

On the other hand, under Code § 36-96.17, the

Commonwealth is given discretion in filing certain types of

fair housing claims. See Code §§ 36-96.17(B) (“Whenever the

Attorney General has reasonable cause to believe that any

person or group of persons is engaged in a pattern or

practice of resistance to the full enjoyment of any of the

rights granted by this chapter, or that any group of persons

has been denied any of the rights granted by this chapter and

such denial raises an issue of general public importance, the

Attorney General may commence a civil action in the

appropriate circuit court for appropriate relief.”) (emphasis

added); -96.17(C) (“In the event of a breach of a

conciliation agreement by a respondent, the [FHB] may

authorize a civil action by the Attorney General. The

24 Attorney General may commence a civil action in any

appropriate circuit court . . . .”) (emphasis added).

Both Code §§ 36-96.16 and -96.17 enable a “prevailing

party” to seek an award of attorney’s fees. Code § 36-

96.16(D), upon which Windsor Plaza relies in requesting

attorney’s fees and costs from the Commonwealth, states, “In

any court proceeding arising under this section, the court,

in its discretion, may allow the prevailing party reasonable

attorney’s fees and costs.” Code § 36-96.17(E)(3) states in

relevant part that a court may “[a]ward the prevailing party

reasonable attorney’s fees and costs. The Commonwealth shall

be liable for such fees and costs to the extent provided by

the Code of Virginia.” Thus, Code § 36-96.17(E)(3)

specifically states that “[t]he Commonwealth shall be liable

for such fees and costs,” while Code § 36-96.16(D) does not.

“[W]hen the General Assembly has used specific language

in one instance, but omits that language or uses different

language when addressing a similar subject elsewhere in the

Code, we must presume that the difference in the choice of

language was intentional.” Newberry Station Homeowners

Ass’n, 285 Va. at 616, 740 S.E.2d at 554 (citation and

internal quotation marks omitted). Code § 36-96.16(A)

imposes a mandatory governmental duty on the Attorney General

to file a civil action on behalf of a complainant when the

25 FHB makes a reasonable cause determination and refers the

matter to the Attorney General. In such an instance, the

Attorney General is required by statute to file the civil

action under the VFHL; the Commonwealth is without discretion

under Code § 36-96.16 in filing the action. In interpreting

the General Assembly’s decision to omit the explicit waiver

of sovereign immunity contained in Code § 36-96.17(E)(3) from

Code § 36-96.16(D), we conclude that the General Assembly

decided not to waive sovereign immunity in actions in which

the Attorney General is performing a mandatory governmental

function by filing an action pursuant to Code § 36-96.16.

Without an express waiver of sovereign immunity, Windsor

Plaza cannot recover attorney’s fees from the Commonwealth.

Therefore, the circuit court erred in ruling that Windsor

Plaza’s claim for attorney’s fees was not barred by the

doctrine of sovereign immunity. However, because the circuit

court decided not to impose attorney’s fees or costs against

the Commonwealth, such error was harmless. See Code § 8.01-

678.

B. The Fishels’ Appeal (Record No. 131817)

The Fishels assign error to the rulings of the circuit

court in (1) establishing the accrual date for their state

and federal reasonable accommodation claims; (2) applying the

statute of limitations period in Code § 36-96.18(B) to their

26 additional claims brought when they intervened; and (3)

determining that the alleged violations of Code §§ 36-

96.3(A)(8) and (9) and 42 U.S.C. §§ 3604(f)(1) and (2) were

not continuing violations. Windsor Plaza assigns cross error

to the circuit court’s ruling denying its request for

attorney’s fees against the Fishels.

1. Accrual of State and Federal Reasonable Accommodation Claims

The Fishels argue that the circuit court erred in

finding that their state and federal reasonable accommodation

claims accrued on August 23, 2007. “A plea in bar presents a

distinct issue of fact which, if proven, creates a bar to the

plaintiff’s right of recovery.” Hilton v. Martin, 275 Va.

176, 179, 654 S.E.2d 572, 574 (2008). Whether the circuit

court erred in finding that August 23, 2007, was the date of

accrual of the Fishels’ causes of action is a mixed question

of law and fact that this Court reviews de novo. See

Chalifoux v. Radiology Assocs. of Richmond, Inc., 281 Va.

690, 696, 708 S.E.2d 834, 837 (2011). This Court defers to

the circuit court’s findings of fact and “view[s] the facts

in the light most favorable to” Windsor Plaza as the

prevailing party. See id. However, we review the trial

court’s application of the law to facts de novo. See

27 Westgate at Williamsburg Condo. Ass’n v. Philip Richardson

Co., 270 Va. 566, 574, 621 S.E.2d 114, 118 (2005).

Under both the VFHL and FHAA, a reasonable accommodation

claim accrues upon “the occurrence or the termination of an

alleged discriminatory housing practice.” Code § 36-

96.18(A); 42 U.S.C. § 3613(a)(1)(A). “[D]iscrimination

includes . . . a refusal to make reasonable accommodations in

rules, practices, policies, or services when such

accommodations may be necessary to afford such person equal

opportunity to use and enjoy a dwelling . . . .” Code § 36-

96.3(B)(ii); 42 U.S.C. § 3604(f)(3)(B). Thus, the Fishels’

reasonable accommodation claims accrued when Windsor Plaza

denied their request for a reasonable accommodation.

The parties dispute when Windsor Plaza denied the

Fishels’ request. The circuit court found that Windsor Plaza

denied their request on August 23, 2007. However, the

Fishels claim that after August 23, 2007, they engaged in an

interactive process with Windsor Plaza and that their

reasonable accommodation claims did not accrue until this

interactive process concluded.

When a disabled person makes a request for a reasonable

accommodation, the parties may engage in an interactive

process. The purpose of this interaction between one who has

requested a reasonable accommodation and the recipient of the

28 request is to arrive at a solution that is agreeable to both

parties. See Joint Statement of Dep’t of Hous. & Urban Dev.

& Dep’t of Justice, Reasonable Accommodations Under the Fair

Housing Act 7 (May 17, 2004). 6 However, the interactive

process does not change the date of accrual because such a

process is not required and a reasonable accommodation claim

accrues when the request is denied. 7 Thus, the relevant

question is when Windsor Plaza denied the Fishels’ request,

thereby triggering the statute of limitations for their

reasonable accommodation claims.

On July 30, 2007, the Fishels asked for “a larger

parking space” in a different location because of Fishel’s

disability. After Windsor Plaza’s Board considered the

Fishels’ request, it informed them by email on August 23,

6 The Joint Statement is available at http://www.justice.gov/crt/about/hce/joint_statement_ra.pdf (last visited December 29, 2014). 7 Our conclusion is reinforced by the recognition that parties may choose to forego the interactive process. We note that federal courts disagree as to whether the interactive process is mandatory under the FHAA. Compare Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996) (“If a landlord is skeptical of a tenant's alleged disability or the landlord's ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue.”) with Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment, 284 F.3d 442, 455-56 (3d Cir. 2002) (“Therefore, we hold that notwithstanding the ‘interactive process’ requirement that exists in the law of this court in the employment context under the Rehabilitation Act, . . . the FHAA imposes no such requirement on local land use authorities.”) (citation omitted).

29 2007, that it was powerless to accommodate their request

because all the parking spaces were limited common elements

and deeded to other condominium owners. It stated that it

could not reassign the disabled parking spaces. Thus, there

is evidence to support the circuit court’s finding that this

email constituted Windsor Plaza’s denial of the Fishels’

request and that the Fishels’ reasonable accommodation claims

accrued on that date.

The Fishels argue alternatively that they renewed their

request after receiving the August 23, 2007 email. They cite

Tobin v. Liberty Mutual Insurance Co., 553 F.3d 121, 131 (1st

Cir. 2009), a case concerning the Americans with Disabilities

Act (ADA), in support of their position. In Tobin, the First

Circuit considered an employee’s reasonable accommodation

claim against his employer. Id. at 124-25. The court

acknowledged that the denial of a subsequent request for an

accommodation could constitute a new discriminatory act for

purposes of the statute of limitations if an employer commits

a “new ‘discrete act’ of discrimination.” Id. at 131.

However, the First Circuit observed that when an employer

denies a subsequent request simply seeking reversal or

“modification” of a prior denial, the subsequent denial is

not a new discrete act sufficient to extend the statute of

limitations. See id. (“[A]n employee may not extend or

30 circumvent the limitations period by requesting modification

or reversal of an employer’s prior action.”).

Even if law governing renewed requests for reasonable

accommodations under the ADA applies to reasonable

accommodations claims under the VFHL and FHAA, there is

evidence to support the circuit court’s finding that the

Fishels did not renew their request. After the Board denied

their request on August 23, 2007, the Fishels asked “the

Board to review th[e] issue again in an expedited manner.”

This is a request for reconsideration of the Board’s prior

denial, not a renewed request that results in a new denial.

Consequently, the Board did not commit a new discriminatory

act after its initial denial on August 23, 2007.

The Fishels had to file their state reasonable

accommodation claim within the longer of two years from the

date of accrual or “180 days after the conclusion of the

administrative process.” See Code § 36-96.18(B). Two

calendar years from the date of accrual fell on August 23,

2009, and 180 days from the conclusion of the FHB proceeding

fell in late November 2010. See Ward v. Insurance Co. of N.

Am., 253 Va. 232, 235, 482 S.E.2d 795, 797 (1997) (holding

that Virginia statutes of limitations are calculated using

“calendar years and not ‘365-day periods’”). The Fishels’

31 intervening complaint was not filed until January 28, 2011,

after both statutory time periods had passed.

Likewise, the Fishels’ federal reasonable accommodation

claim was also barred. Even with the benefit of tolling

while the administrative process was pending from May 4, 2009

until June 1, 2010, the federal two-year statute of

limitations expired in September 2010. See 42 U.S.C. §

3613(a)(1)(B). Therefore, we hold that the circuit court did

not err in finding that the Fishels’ reasonable accommodation

claims filed on January 28, 2011 were barred by the statute

of limitations.

2. Intervention Pursuant to Code § 36-96.16

The Fishels contend that the circuit court also erred in

applying the statute of limitations in Code § 36-96.18 to

their claims because they intervened in the Commonwealth’s

action pursuant to Code § 36-96.16. They point out that

under Code § 36-96.16(B) intervention is “as of right.” The

Fishels maintain that there is no statute of limitations for

intervention under Rule 3:14 or Code § 36-96.16 and that

circuit courts instead exercise their sound discretion in

permitting intervention.

On the other hand, Windsor Plaza asks this Court to

construe Code §§ 36-96.16 and -96.18 together. Windsor Plaza

maintains that although Code § 36-96.16 allows the Fishels to

32 intervene, the statute of limitations period in Code § 36-

96.18 applies to the Fishels’ new claims because they are

private parties and because no exception is carved out for

intervenors.

The Fishels not only intervened in the action brought by

the Commonwealth, they also filed an intervening complaint

which raised additional causes of action that had not been

raised by the Commonwealth in its complaint. Whether the

statute of limitations in Code § 36-96.18 applies to the

Fishels’ civil action filed pursuant to Code § 36-96.16

requires statutory interpretation, which is a question of law

that we review de novo. See Collelo, 283 Va. at 66, 727

S.E.2d at 59. “Statutes dealing with the same subject matter

must be read together so as to adhere to the legislative

intent underlying them and to permit them to operate together

without conflict.” McKinney v. Virginia Surgical Assocs.,

P.C., 284 Va. 455, 460, 732 S.E.2d 27, 29 (2012).

Code § 36-96.16(B) enables an “aggrieved person” to

intervene in the Commonwealth’s civil action: “Any aggrieved

person with respect to the issues to be determined in a civil

action [filed by the Attorney General after referral from the

FHB] may intervene as of right.” This subsection does not

set forth a specific limitations provision for claims made

33 through intervention by aggrieved persons. See Code § 36-

96.16(B).

However, Code § 36-96.18(A), which permits “aggrieved

person[s]” to file original civil actions alleging

“discriminatory housing practice[s],” does contain a

limitations period. Subsection (B) provides,

An aggrieved person may commence a civil action under § 36-96.18 A no later than 180 days after the conclusion of the administrative process with respect to a complaint or charge, or not later than two years after the occurrence or the termination of an alleged discriminatory housing practice, whichever is later.

Code § 36-96.18(B). The statutory language gives no

indication that an intervenor’s civil action should be immune

from the statute of limitations normally applicable to claims

brought by aggrieved persons. In fact, Code § 36-96.16(B)

uses the same term, “aggrieved person,” to describe the

intervenor as is used in Code § 36-96.18(B) to describe the

private party plaintiff.

We note that this Court has applied a statute of

limitations in one statute to an action allowed to be filed

in intervention pursuant to a different statute. In

Commonwealth Mechanical Contractors, Inc. v. Standard Federal

Savings & Loan, 222 Va. 330, 332, 281 S.E.2d 811, 812 (1981),

we held that the limitations period in Code § 43-17 applied

to “a lienor’s intervening petition in a suit to enforce a

34 mechanics’ lien” filed pursuant to Code § 43-22. The

limitations period in Code § 43-17 applied to suits to

enforce liens, but it did not expressly refer to Code § 43-

22. Id. As noted by this Court, the “common history” of

Code §§ 43-17 and -22 dictated they should “be interpreted in

light of [each] other.” Id. We observed that intervening in

an existing action as a means of asserting new claims was

“the equivalent of instituting a suit under Code § 43-17.”

Id.

Like the statutes at issue in Commonwealth Mechanical

Contractors, Code §§ 36-96.16 and -96.18 are interrelated.

Pursuant to these statutes, an aggrieved person may choose to

intervene in a civil action filed by the Attorney General

alleging a discriminatory housing practice on behalf of the

aggrieved person or file an original claim alleging a

discriminatory housing practice on his or her own behalf.

See Code §§ 36-96.16 (A) and (B); -96.18(A). When an

aggrieved person not only intervenes in a civil action, but

also files a new claim not previously asserted, the

applicable statute of limitations applies to that new claim.

Therefore, we hold that the circuit court did not err in

applying the statute of limitations in Code § 36-96.18 to the

Fishels’ additional claims brought in a new complaint filed

upon intervention.

35 3. Continuing Violations

Finally, the Fishels claim that the circuit court erred

in determining that Windsor Plaza’s alleged violations of

Code §§ 36-96.3(A)(8) and (9) and 42 U.S.C. §§ 3604(f)(1) and

(2) were not continuing violations. They maintain that

Windsor Plaza continues to discriminate against them in the

sale of their condominium unit as well as continues to make

housing unavailable by “operat[ing] a condominium premises

that does not provide the accessible garage parking spaces

required by [law].” Because Windsor Plaza continues to

operate a condominium that lacks handicap-accessible parking

while benefitting from the payment of the Fishels’

condominium fees, the Fishels argue that “the statute of

limitations does not bar [their] claims” because Windsor

Plaza’s latest discriminatory act falls within the statute of

limitations period.

Windsor Plaza responds that the violations alleged by

the Fishels are continuing effects, not continuing

violations. Windsor Plaza contends that its alleged

violations are the continuing effects of the developer’s

assignment of disabled parking spaces to individual unit

owners and cannot extend the statute of limitations.

The circuit court’s determination that the Fishels did

not allege continuing violations presents a mixed question of

36 law and fact that this Court reviews de novo. See Chalifoux,

281 Va. at 696, 708 S.E.2d at 837. “In our review of the

circuit court's application of the law to the facts, we give

deference to the circuit court's factual findings and view

the facts in the light most favorable to . . . the prevailing

party below.” Id.

In addition to their reasonable accommodation claims,

the Fishels’ complaint alleged that Windsor Plaza

discriminated against them in violation of Code §§ 36-

96.3(A)(8) and (9) and 42 U.S.C. §§ 3604(f)(1) and (2). Code

§§ 36-96.3(A)(8) and (9) make unlawful the following

discriminatory housing practices:

8. To refuse to sell or rent, or refuse to negotiate for the sale or rental of, or otherwise discriminate or make unavailable or deny a dwelling because of a handicap of (i) the buyer or renter, (ii) a person residing in or intending to reside in that dwelling after it is so sold, rented or made available, or (iii) any person associated with the buyer or renter;

9. 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 therewith because of a handicap of (i) that person, (ii) a person residing in or intending to reside in that dwelling after it was so sold, rented or made available, or (iii) any person associated with that buyer or renter.

See also 42 U.S.C. §§ 3604(f)(1) and (2) (containing

substantially similar provisions).

37 The continuing violation doctrine is one in “which acts

occurring outside the statute of limitations may be

considered when there is a ‘fixed and continuing practice’ of

unlawful acts both before and during the limitations period.”

Scoggins, 718 F.3d at 271 (citation and internal quotation

marks omitted). One federal district court has explained the

difference in continuing violations and continuing effects of

past violations: “[A] continuing violation is occasioned by

continual unlawful acts, not continual ill effects from an

original violation.” Moseke v. Miller & Smith, Inc., 202 F.

Supp. 2d 492, 495 (E.D. Va. 2002) (citations and internal

quotation marks omitted).

In Moseke, the court concluded that the inaccessible

features of three condominium complexes were “more akin to a

continuing effect rather than a continuing violation under

the FHA[A].” Id. at 507. Because the plaintiffs alleged

design and construction claims under the FHAA and VFHL, the

court reasoned that the last discriminatory act occurred when

the defendants completed construction of the complexes. Id.

The court was not swayed by the plaintiff’s argument that the

violation was ongoing because the condominiums continued to

operate without disabled parking spaces. Id. at 510.

In this case, the circuit court correctly determined

that the Fishels did not allege continuing violations of Code

38 §§ 36-96.3(A)(8) and (9) and 42 U.S.C. §§ 3604(f)(1) and (2).

The violations alleged by the Fishels — allowing disabled

parking spaces to be assigned to residents as limited common

elements without reserving a handicap-accessible parking

space for the Fishels — occurred at one point in time. The

Fishels’ not being able to use a disabled parking space is a

continuing effect of having assigned all the handicap-

accessible parking spaces to other owners before the Fishels

bought their condominium. Thus, the circuit court did not

err in determining that the alleged discriminatory acts by

Windsor Plaza are not continuing in nature but continuing in

effect. Therefore, the circuit court did not err in

sustaining Windsor Plaza’s plea in bar to the Fishels’ claims

under Code §§ 36-96.3(A)(8) and 9 and 42 U.S.C. §§ 3604(f)(1)

and (2).

4. Windsor Plaza’s Cross Error: Attorney’s Fees

Windsor Plaza argues that the circuit court abused its

discretion by refusing to award it attorney’s fees against

the Fishels. Windsor Plaza contends that the Fishels’ claims

were meritless. It maintains that the Fishels filed six

untimely claims, greatly expanding the scope of their lawsuit

compared to the Commonwealth’s single claim. Windsor Plaza

further asserts that the Fishels did not assert their claims

39 in good faith because they were aware that their assigned

parking space was inadequate when they purchased it and

because they “knew or should have known” that the remainder

of the parking spaces in the underground garages were

assigned to other unit owners.

The Fishels disagree that the VFHL authorizes an award

of attorney’s fees to a prevailing defendant. Furthermore,

they insist that they asserted their claims in good faith and

that the circuit court “properly weighed” each point raised

by Windsor Plaza. The Fishels claim that they helped Windsor

Plaza avoid extra expense by intervening in the

Commonwealth’s lawsuit instead of filing their claims

separately. According to the Fishels, the circuit court

“specifically found” that Fishel was entitled to an

accommodation and that their claims were not meritless merely

because the statute of limitations barred the claims.

This Court reviews a trial court’s refusal to award

attorney’s fees for abuse of discretion. Lynchburg Div. of

Soc. Servs. v. Cook, 276 Va. 465, 484, 666 S.E.2d 361, 370

(2008). A trial court may abuse its discretion by failing to

consider a “relevant factor that should have been given

significant weight”; by considering “an irrelevant or

improper factor [and giving it] significant weight”; or by

“commit[ting] a clear error of judgment.” Robinson-Huntley

40 v. George Washington Carver Mut. Homes Ass’n, 287 Va. 425,

432, 756 S.E.2d 415, 420 (2014) (citation and internal

quotation marks omitted). A trial court may also abuse its

discretion by basing its decision on an erroneous legal

conclusion. Cook, 276 Va. at 484, 666 S.E.2d at 371.

Code § 36-96.16(D) states, “In any court proceeding

arising under this section, the court, in its discretion, may

allow the prevailing party reasonable attorney’s fees and

costs.” A “prevailing party” is “[a] party in whose favor a

judgment is rendered, regardless of the amount of damages

awarded.” Sheets v. Castle, 263 Va. 407, 413, 559 S.E.2d

616, 620 (2002) (citation and internal quotation marks

omitted). Because the circuit court granted Windsor Plaza’s

plea in bar and entered judgment in its favor, it is a

“prevailing party” for purposes of Code § 36-96.16(D).

In denying Windsor Plaza’s claim for attorney’s fees,

the circuit court found that the Fishels asserted their

claims in good faith. The circuit court noted that the FHB

found reasonable cause to believe Windsor Plaza had committed

a discriminatory housing practice and the Attorney General

filed a civil action based on the FHB’s determination.

Furthermore, it found the Fishels reasonably chose to

intervene in the Commonwealth’s suit rather than file a

separate lawsuit and asserted their federal and state claims

41 in the same action. The circuit court opined that their

claims were not meritless simply because they were barred by

the statute of limitations. Although the court acknowledged

the expense Windsor Plaza had incurred in defending itself

during the litigation, it pointed out that the policy behind

fair housing laws seeks to encourage private enforcement.

The circuit court considered relevant factors and duly

weighed them. Windsor Plaza fails to identify any improper

factor or erroneous legal conclusion that the circuit court

used in reaching its decision. Therefore, we cannot say that

the circuit court abused its discretion in refusing to award

attorney’s fees to Windsor Plaza.

Conclusion

For the reasons stated, we dismiss the Commonwealth’s

assignment of error claiming that the circuit court erred in

dismissing “the four individual defendants” because the

Commonwealth failed to join all of these defendant parties in

its appeal. We affirm the circuit court’s rulings that the

evidence relating to conversion of the bicycle storage space

into an accessible parking space supported a claim for

reasonable modification under Code § 36-96.3(B)(i), rather

than a claim for reasonable accommodation under Code § 36-

96.3(B)(ii). We also affirm the circuit court’s ruling

granting Windsor Plaza’s motion to strike. However, we hold

42 that although the error was harmless, the circuit court erred

in ruling that Windsor Plaza’s request for attorney’s fees

against the Commonwealth under Code § 36-96.16(D) was not

barred by sovereign immunity.

As for the Fishels’ appeal, we affirm the circuit

court’s sustaining of Windsor Plaza’s plea in bar to the

Fishels’ additional claims because the statutes of

limitations had expired when the Fishels filed their

intervening complaint. The Fishels’ claims do not concern

continuing violations, and the claims accrued on August 23,

2007. Thus the statutes of limitations in Code § 36-96.18

and 42 U.S.C. § 3613(a)(1)(A) bar the Fishels’ claims brought

pursuant to Code §§ 36-96.3(A)(8) and (9) and 42 U.S.C. §§

3604(f)(1), (2) and (3)(B). Finally, the circuit court did

not abuse its discretion in refusing to award Windsor Plaza

Record No. 131806 – Affirmed in part, reversed in part, and final judgment.

Record No. 131817 – Affirmed.