Henlopen Landing Homeowners Association, Inc. v. Russell H. Vester

• Court: Court of Chancery of Delaware
• Decided: August 1, 2019
• Docket: CA No. 7229-VCG
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

HENLOPEN LANDING ) HOMEOWNERS ASSOCIATION, ) INC., ) ) Petitioner, ) ) v. ) C.A. No. 7229-VCG ) RUSSELL H. VESTER and JAKARA ) VESTER, ) ) Respondents, ) ) ) RUSSELL H. VESTER and JAKARA ) VESTER, ) ) Counterclaim Plaintiffs, ) ) v. ) ) HENLOPEN LANDING ) HOMEOWNERS ASSOCIATION, ) INC., and PREMIER PROPERTY & ) POOL MANAGEMENT, LLC, A/K/A ) PREMIER PROPERTY ) MANAGEMENT, ) ) Counterclaim Defendants. )

MEMORANDUM OPINION

Date Submitted: April 5, 2019 Date Decided: August 1, 2019

Michael R. Smith, of THE SMITH FIRM, LLC, Seaford, Delaware, Attorney for Petitioner Henlopen Landing Homeowners Association, Inc. and Counterclaim Defendant Premier Property & Pool Management, LLC. Richard H. Morse and Meghann O. Karasic, of COMMUNITY LEGAL AID SOCIETY, INC, Wilmington, Delaware, Attorneys for Respondents.

GLASSCOCK, Vice Chancellor A court of equity is, fundamentally, a forum to address those agency problems

arising where ownership and control of assets are separated. One such instance

involves ownership of real property in restricted developments, where owners have

ceded certain rights over use and development of realty via deed restrictions, as

enforced by homeowners’ associations. In twenty-odd years on the bench, I have

tried many disputes between property owners and homeowners associations, testing

the limits of the exercise of such enforcement. In nearly every such case, the

homeowner believes she has been singled out for unfair and overbearing—even

tyrannical—treatment by the associations. At times, this belief is vindicated; at other

times, not.

The matter before me is of this ilk, but with a twist. This case was originally

brought by the Henlopen Landing Homeowners Association, Inc. (the

“Association”) to enforce deed restrictions against the Plaintiffs Russell and JaKara

Vester (together, the Vesters), who own a house in the Henlopen Landing

development near Five Points, south of Lewes. The purported deed restriction

violations have all been mooted during the course of the litigation, and the

Association’s only remaining claim is for a mootness fee, which I will address by

separate opinion.

The remaining portion of the action is the Vesters’ Amended Counterclaim.

The twist is that the Vesters are an interracial couple with an autistic son, among other children. The Vesters contend that the actions of the Homeowners were

motivated by animus against their race, their son’s medical condition, and the fact

that they had children, in violation of the Delaware and Federal Fair Housing Acts.

Their Amended Counterclaim seeks relief solely under those Acts.

The matter was tried over one day. This is my post-trial decision. It is

clear to me that the Vesters are sincere in their belief that they have been

discriminated against for invidious reasons, in violation of the Fair Housing Acts. It

is also clear that some of the violations of deed restrictions alleged by the

Association against the Vesters were picayune, and at least one action—excluding

the Vester family from the use of the community pool as coercion to remedy

unauthorized alteration of the Vester driveway—persisted long after the underlying

issue was remedied, and to that extent was ultra vires and improper. And I

acknowledge that animus on racial, familial status, and disability grounds are among

the evils that the Fair Housing Acts were created to remedy. Nonetheless, I find that

the Vesters failed to prove that the Association—or its property management agent,

Defendant Premier Property & Pool Management, LLC, a/k/a Premier Property

Management (“Premier”)—acted for reasons of animus regarding the Vesters’ race,

familial status, or disability, so as to be liable under the Acts. My reasoning follows.

1 I. BACKGROUND

Counterclaim-Defendant Henlopen Landing Homeowners Association, Inc.

initiated this litigation. However, trial was held to decide only the Counterclaim-

Plaintiffs Russell and JaKara Vester’s counterclaims to the Association’s Petition.

The facts that follow are only those relevant to those counterclaims, and were either

stipulated by the parties or proven by a preponderance of the evidence at trial.

A. The Parties

On November 11, 2010, the Counterclaim-Plaintiffs,1 the Vesters, purchased

a home in a housing development, Henlopen Landing, south of Lewes, Delaware.2

The Vesters are married and are an interracial couple.3 They have four children, one

of whom, ZaKai, according to his mother, has autism, evidence of which was not

established at trial, but was represented to (and accepted as true by) the Association

as early as June 27, 2011.4

Petitioner and Counterclaim-Defendant Henlopen Landing Homeowners

Association, Inc. is a non-profit Delaware corporation.5 Henlopen Landing is

1 The Vesters are also the Respondents to the initial Petition in this action. 2 Amended Pretrial Stip. and Order [hereinafter, APTSO], ¶ II.1. All the following references to the APTSO are to Section II of the APTSO, unless otherwise specified. 3 Id. ¶ 1. 4 Id. ¶ 2; JX 11 (the Vesters’ application for various property modifications, noting “our child has special needs”); JX 14 (the Henlopen Landing Architectural Review Board’s approval of a heightened fence after “presentation from the Vesters regarding the needs of their child”); see also Crane Dep. 27:13–20. 5 JX 26, Art. I, Definitions, “Association.”

2 subject to the Declaration of Covenants, Conditions and Restrictions for Henlopen

Landing (the “Declaration”) and bylaws and regulations promulgated under that

authority. 6 According to the parties, the Declaration empowers the Association to

govern Henlopen Landing. 7

Counterclaim-Defendant Premier Property & Pool Management, LLC was the

property management company for the Association, at the relevant times to this

litigation. 8

B. Administration of Henlopen Landing

1. The Declaration

Property in the community of Henlopen Landing is subject to the Declaration.

As the Declaration describes, the developer of Henlopen Landing established the

Association for the purpose of, among other things, “maintaining and administering

the Common Area; . . . administering and enforcing covenants, conditions and

restrictions . . . ; [and] adopting and enforcing rules and regulations.” 9 Furthermore,

pursuant to the Declaration, the Association had the “power to provide, and shall

provide . . . [e]stablish and operate the Henlopen Landing Architectural Board

. . . .” 10

6 JX 26. 7 Id. § 3.5. 8 See JX 51. 9 JX 26, § 3.5. 10 Id. § 3.5.4.

3 The Henlopen Landing Architectural Board (the “ARB”) was given the

“exclusive jurisdiction over all original construction, modifications, additions or

alterations made on or to all existing improvements . . .” in Henlopen Landing.11

The Declaration specifically mentions “fence[s]” and “paving for driveways” as

examples of structures that cannot “be erected, placed or altered” before review and

written approval by the ARB.12 The ARB was tasked with establishing “design and

development guidelines and application and review procedures,”13 but the ARB

could “authorize variances for compliance with any of the provisions of [the

standards] when circumstances . . . require . . . .” 14

The Declaration itself contains certain limitations on the improvements that

homeowners can make to their property in Henlopen Landing. Pertinent here is a

provision on fences, according to which, “[f]ences, boundary walls, boundary line

hedges and shrubberies shall be prohibited within the front yard area of the lots and

in general, shall not be closer to the front of the lot than one-half (1/2) of the length

of the side of the dwelling unit. The height of any such fence, boundary wall,

boundary line hedge or shrubbery along the side of a unit shall not exceed four feet

(4’-0”).”15 Fences were only permitted with “[p]rior written approval . . . from the

11 Id. § 7.2. 12 Id. § 7.6.1. 13 Id. § 7.2. 14 Id. § 7.5. 15 Id. § 8.2.1 (emphasis added).

4 Henlopen Landing Architectural Board.”16 Also pertinent is a provision regarding

any action that “will affect drainage of stormwater.” 17 An application for such action

needs “to include a certification of non-effect of said plans from a professional

engineer licensed in the State of Delaware.” 18

The Declaration limits what homeowners can do to the common property of

Henlopen Landing and provides that “[n]o person shall alter in any way any

Common Area except with the written permission of the Developer or

Association.”19 The Declaration also includes limitations on activities on a

homeowner’s property, such as “Garbage/Trash Disposal.” According to the

Declaration, the Developer or the Association were to establish “reasonable

standards” for “garbage and trash receptacles or similar facilities.”20 These

“receptacles shall be placed only at the front of the dwelling in an enclosure

approved by the Developer or [the Association] and placed adjacent to the driveway

for the dwelling in a location approved by the Developer or Association.”21

However, “[i]f an Owner does not have a receptacle or similar facility approved by

16 Id. § 8.2.2. 17 Id. § 7.3. 18 Id. 19 Id. § 8.26. 20 Id. § 8.15. 21 Id.

5 the Developer or Association, all garbage and trash must be kept in the Owner’s

garage . . . .” 22

If a homeowner committed an infraction of the Association’s published rules

and regulations, or breached or was in default of any of the covenants or provisions

of the Declaration, that homeowner’s rights to use Henlopen Landing’s common

areas could be suspended. 23 If an infraction is singular and nonrecurring, suspension

of rights cannot exceed ninety days, following “notice from the Board of

Directors.”24 If an infraction is continuous or recurring, suspension, again following

notice, could extend up to ninety days after the infraction ceases or is remedied.25

2. Enforcing of the Declaration and Bylaws

The Declaration permitted the Association to hire a property manager for

Henlopen Landing.26 Premier, as the property manager, issued notices to

homeowners for violations of or non-compliance with the Declaration or

promulgated bylaws.27 It did so after conducting its own inspections or after

receiving “credible” reports from other homeowners in the community. 28 However,

22 Id. 23 Id. § 4.1.2. 24 Id. The “Board of Directors” is the board of directors of the Association, which governs the Association. Id., Art. I, Definitions, “Board of Directors;” id. § 3.6 (determining the composition of the Board of Directors). 25 Id. § 4.1.2. 26 Id. § 3.8. 27 See, e.g., JX 6; JX 9. 28 JX 9.

6 only the Association, and not Premier by itself, had the authority to suspend the right

of homeowners to use Henlopen Landing’s common areas in response to violations

of the Declaration. 29 Premier also acted, generally, as a liaison between homeowners

and the Association, and specifically between homeowners and the ARB.30

C. The Vesters’ Application for Architectural Modifications of their Property

1. The Vesters’ Requests

On June 27, 2011,31 the Vesters submitted a request to the Architectural

Review Board (the “ARB”) for five architectural modifications to their property. 32

The Vesters requested that they be permitted to: (1) install an irrigation well; (2)

install a gazebo; (3) install a driveway expansion; and, most relevant here, (4) install

a six-foot-high fence that encompasses the side door of their garage.33 With respect

to the fence request, the Vesters indicated that they sought two exceptions to Section

8.2.1 of the Declaration, concerning fencing. 34 First, the Vesters asked to exceed the

four foot height limit and build to a height of six feet because their “child has special

needs” and “could easily climb a 4 foot fence.” 35 Second, the Vesters asked to “fence

29 JX 26, § 4.1.2; Trial Tr. 282:9–13 (Kimberly Rice). 30 APSTO ¶ 43. 31 Id. ¶ 2; JX 11 (The Vesters’ request is dated June 24, 2011). 32 APTSO ¶¶ 3, 4; see also JX 11. 33 APTSO ¶¶ 3, 4; JX 11. The fence was considered to be two architectural modifications, as the Vesters sought both a height variation and a location variation. 34 JX 11. 35 Id.

7 more than 1/2 of [their] side yard where our door for entrance to the garage is located

to allow [them] the ability to let [their] dog outside in inclement weather.”36

With respect to the request to expand the driveway, the Vesters attached a

“Contract Proposal and Receipt” from a contractor that performed asphalt paving;

the proposal did not include any information on the grading or slope of the

driveway. 37 Mrs. Vester also attended an ARB meeting on July 1, 2011, at which

she presented the four requests to the ARB. 38

Mrs. Vester testified that the reason provided in her request for extension of

the fence to encompass the garage side door—to accommodate the family pet—was

pretextual. According to Mrs. Vester, the fence location variance, like the height

exception, was intended to accommodate her child, ZaKai’s special needs, by

allowing him access to the backyard through the garage.39 Mrs. Vester testified that

she worried that this real reason might be problematic for the ARB. 40 Mrs. Vester

had discussed the matter with a neighbor who had a fence that enclosed her side

door, and based on that conversation, Mrs. Vester decided to instead indicate that

36 APTSO ¶ 42; JX 11. 37 JX 11. 38 Crane Dep. 19:12–20, 21:2–8; Trial Tr. 91:4–8 (JaKara Vester). In post-trial briefing, Mrs. Vester claims that she raised with the ARB, at this meeting, the importance of the fence encompassing the side door of her garage, as well as the height of the fence, as a safety factor for her special needs son. However, I find that her testimony does not support this. See Trial Tr. 97:14–98:12 (JaKara Vester). 39 Trial Tr. 73:6–78:13 (JaKara Vester). 40 Id. at 88:6–89:18, 89:23–90:2.

8 the fence location was for her pet (the same reason that Mrs. Vester testified her

neighbor had given, resulting in approval of the variance).41 The Vesters’ home does

have several other doors that lead to their backyard; 42 however, Mrs. Vester believed

that enclosing the garage’s side door was in the best interest of her special needs

child, ZaKai. 43

2. The Architectural Board’s Decision

After Mrs. Vester presented her request in-person to the ARB, the Review

Board met and made a decision on the Vesters’ architectural modifications request.44

On July 7, 2011, Premier e-mailed Mrs. Vester the ARB’s decision.45 The ARB

approved the Vester’s request for a six-foot-tall fence but denied the request to

extend the fence far enough to enclose the Vesters’ garage side door.46 Regarding

the fence requests, the ARB wrote, “[a]fter a presentation from the Vesters regarding

the needs of their child, the Board decided to grant approval for a [fence] . . . totaling

6’. The case for hardship was established. As a condition of approval the fence

cannot be more than 1/2 the way up the side of the house . . . .” 47

41 Id. at 86:9–89:18. 42 Id. at 157:6–159:3. 43 Id. at 159:18–166:9. 44 Crane Dep. 34:8–13. 45 APTSO ¶ 5. 46 Id. ¶ 5; JX 14. 47 JX 14.

9 The ARB approved several of the Vesters’ other requests, including

installation of a gazebo and installation of an irrigation well. 48 The ARB deferred

decision on the Vester’s’ driveway extension request, and asked the Vesters to

submit “a plan from the contractor indicating the slope of the driveway is interior

not exterior.”49

3. The Vesters’ Attempt to Appeal the ARB’s Decision on the Fence

After receiving the ARB’s decisions, Mrs. Vester e-mailed Kate Roach of

Premier on July 7, 2011.50 Mrs. Vester asked that the ARB reconsider its decision

on the location of the fence.51 Mrs. Vester noted in the same e-mail that others in

the community had received permission to build fences in similar locations “for the

same reason [the Vesters had] requested;” 52 presumably, to allow their pets to go

from garage to backyard. Again, this reason was pretextual. Mrs. Vester also asked

that the ARB consider that a fence enclosing their side garage door would prevent

others from tampering with the Vesters’ sprinkler system controls and other

vandalism. 53 Mrs. Vester, however, did not disclose in her written request for

reconsideration her real reason for the fence extension, to accommodate her son’s

48 APTSO ¶ 4. 49 Id.; JX 14. 50 APTSO ¶ 6. 51 Id. 52 Id. ¶ 7. 53 JX 15, at 4.

10 special needs.54 At least one home in Henlopen Landing has a fence that encloses

the exterior side door of its garage.55

In regard to the driveway extension, Mrs. Vester wrote to Ms. Roach that

“[u]pon closer review of the proposal from the asphalt company we see that they did

specify grading and the extension is to conform to the existing driveway which

should clarify that the grading and slope is in fact interior . . . I have also asked the

contractor(s) if they could clarify this issue as well and all have stated that the

proposal should make that clear and that they do not do ‘grading plans.’” 56

On the same day, Ms. Roach replied by e-mail to Mrs. Vester and wrote that

she would direct Mrs. Vester’s concerns to the ARB and that either she or the ARB

would respond to Mrs. Vester.57 The practice at the time was for Premier to receive

requests for the Association, including architectural modification requests made to

the ARB, and prepare the requests for review by Association (and the ARB).58

On July 13, 2011, Mrs. Vester e-mailed Ms. Roach to follow-up on the request

for the ARB to reconsider their decisions on the fence and driveway. 59 Ms. Roach

responded on July 14, 2011, writing “All has been approved.”60

54 Id. 55 APTSO ¶¶ 11–15. 56 See JX 13; JX 15. 57 APTSO ¶ 8. 58 Id. ¶ 43. 59 JX 15, at 3. 60 Id. at 2–3.

11 4. The Vesters Proceed with the Driveway Extension

The Vesters had sought and received a second proposal from the contractor

set to perform the paving and modification of their driveway. 61 This second proposal

indicated that the work would be conducted to conform to the “existing driveway

grade. All the way to road.” 62 However, it does not appear that Premier, or the ARB,

received this second proposal from the Vesters before August 4, 2011, 63 the day on

which the Vesters’ driveway was modified.

The Vesters, however, believed they had the necessary approval from the

ARB to proceed on all of their modifications, given Ms. Roach’s July 14, 2011 e-

mail stating, “All has been approved.”64 As a result, on August 4, 2011, the Vesters

proceeded to alter their driveway. 65 An inspector for Premier was alerted to the

alteration and stopped by the Vesters’ home to discuss the driveway work being done

that day. 66

61 JX 12. 62 Id. 63 The Counterclaim-Defendants questioned the document’s authenticity, as well as its date (the second proposal is dated July 20, 2011 but the Vesters claim this was an error and the document was created on July 2, 2011). In any case, the Vesters failed to show that Premier and/or the ARB received this document prior to August 4, 2011 (or even prior to February 29, 2012). It is also, then, immaterial whether this second proposal would have been sufficient for the ARB to approve the driveway modification at that time. 64 JX 15, at 3. 65 APTSO ¶ 9. I note that there was conflicting testimony as to the extent of the interaction between Mrs. Vester and the Premier inspector, including, what, if anything, the inspector said to Mrs. Vester. 66 Id. ¶ 10.

12 The Vesters completed their driveway alteration on August 4, 2011. 67 Prior

to August 4, 2011, several homeowners in Henlopen Landing had altered their

driveways without prior approval from the Association.68 On August 22, 2011, the

Association requested the opinion of an engineer on the driveway drainage in order

to bring the Vesters’ driveway into compliance.69 Prior to August 22, 2011, the

Association had never required a homeowner to provide the opinion of a professional

engineer licensed in Delaware on storm water drainage when the homeowner

proposed (or completed) a driveway alteration. 70 While the Declaration technically

required such an opinion,71 the ARB had, at most, instead requested a plan indicating

slope from the contractor performing the work.72 Again, however, the record does

not show that the ARB had, by this point, received the second proposal of the

Vesters’ contractor indicating that the slope of the driveway would not be altered.

On August 24, 2012, almost a year after their driveway alteration, the Vesters

provided the Association with the opinion of a professional engineer, which

demonstrated that the drainage of the Vesters’ driveway, as altered, would have no

impact on the storm water management of Henlopen Landing.73

67 Id. ¶ 9. 68 Id. ¶¶ 24–28. 69 Id. ¶ 31. 70 Id. ¶ 31. 71 JX 26, § 7.6. 72 APTSO ¶¶ 29–30 (At least two driveway modifications were approved by Premier on behalf of the Association without the opinion of a professional engineer); JX 14. 73 APTSO ¶ 37.

13 D. The Vesters’ Purported Violations

1. Violations Other than Driveway Non-Compliance

a. Violations Alleged Before June 2011

Prior to submitting their application for architectural modifications in late-

June 2011, the Vesters received a number of notices of non-compliance or violation

of the Henlopen Landing bylaws. 74 Specifically, in April and May 2011, the Vesters

received notices alleging violations of bylaws on street parking,75 noise, 76 operating

a business out of their home, 77 playground equipment, 78 and parking a commercial

vehicle in their driveway. 79

On May 22, 2011, Premier sent the Vesters a letter “concerning the series of

citation letters [the Vesters had] received since [their] settlement in Henlopen

Landing.”80 The letter acknowledged that one such citation letter was sent in error

because Premier had applied the bylaw of a different community. 81 A citation

regarding playground equipment was also issued in error, apparently by mistake of

one of Premier’s inspectors.82 In apparent response to concerns that the Vesters had

74 See JX 4; JX 6; JX 7. 75 JX 4; JX 7. 76 JX 6. 77 Id. 78 JX 9. 79 Id. 80 Id. 81 Id. 82 Id.

14 raised to Premier over the series of citation letters, Premier explained in their letter

that violation notices are issued in response to inspections or “credible report from

a Board, Committee or Owner Member,” but that in the future, Premier would first

“attempt to reach the owner [subject to a potential violation notice] by phone if a

citation is at all questionable.”83 As a result, Premier removed citations for

“Commercial Vehicles, Play Yard Equipment and Operating a Business” from the

Vesters’ “owner record.”84

b. Violations Alleged After June 2011

i. Plantings in the Common Area

Before the Vesters purchased their home in Henlopen Landing, several small,

shrub-like trees had been planted in front of the home, in an area between the street

and the sidewalk.85 When the Vesters moved in, the trees were dead.86 This area,

the Vesters concede, is considered part of the “common area” of Henlopen

Landing.87 After moving in, and around December 2010, the Vesters replaced some

of the small, dead trees with new, live trees.88 The Association considered the

planting of these trees to be a violation of the Declaration.89 Prior to January of

83 JX 9. Every homeowner in Henlopen Landing is an “Owner Member.” JX 26, Art. I, Definitions “Owner;” JX 26, § 3.1. 84 JX 9. 85 Trial Tr. 127:13–23 (JaKara Vester). 86 Id. at 127:17–23. 87 Trial Tr. 175:21–176:14 (JaKara Vester); id. at 222:2–10 (Russell Vester). 88 Id. at 127:24–128:18 (JaKara Vester). 89 Verified Pet. for Enforcement of Recorded Restrictions, ¶¶ 20–23.

15 2012, the Vesters were unaware that the plantings were considered to be in the

common area of Henlopen Landing and that the Association considered the plantings

to be a violation of the Declaration. 90 The Vesters removed the plantings before

August 22, 2012.91

ii. Placement of Garbage Receptacles

The Declaration dictated that “garbage receptacles” be stored either within a

homeowners’ garage or “at the front of the dwelling in an enclosure approved by the

Developer or Association and placed adjacent to the driveway for the dwelling in a

location approved by the Developer or Association.”92 Prior to January of 2012, the

Vesters were unaware that the placement of their trash cans was in violation of the

Declaration. 93 After January 2012, the Vesters stored their trash cans in several

locations, in an attempt to satisfy the Association; all were considered by the

Association to be in violation of the Declaration.94 In 2016, the Vesters built an

enclosure for their trash cans, which the Association considers appropriate. 95

2. The Vesters’ Driveway Modification and Loss of Pool Access

While the Vesters may not have been aware of Association’s position that

their plantings and their placement of garbage receptacle were considered violations,

90 APTSO ¶ 39; Trial Tr. 178:5–16 (JaKara Vester). 91 APTSO ¶ 37. 92 JX 26, § 8.15. 93 APTSO ¶ 38; Trial Tr. 183:18–184:3 (JaKara Vester). 94 Trial Tr. 131:19–132:14, 133:2–134:15 (JaKara Vester). 95 Id. at 223:3–224:23 (Russell Vester).

16 the Vesters were aware that the Association considered the driveway modification

to be non-compliant. On August 4, 2011, the same day the Vesters altered their

driveway, the Vesters’ pool key card, which gave them access to the community

pool at Henlopen Landing, was disabled. 96 The decision was made by the

Association, and performed by Premier. 97 The Association (through Premier)

informed the Vesters that suspension of their pool access was in response to the

Vesters’ alteration of their driveway without prior approval. 98

Mrs. Vester discovered that her pool access had been deactivated when she

and her family attempted to enter the pool area a few days after August 4, 2011.99

Mrs. Vester understood the reason given for the pool access deactivation was the

Vesters’ driveway modification, 100 but believed she had obtained the requisite

approval for the driveway modification because of, among other things, her

communication with Premier that her requests had been “approved.”101 Mrs. Vester

also believed that Premier (and the Association) had received her contractor’s

second proposal, which she believed satisfied the ARB’s concerns on drainage.102

There is no evidence, however, that such was the case.

96 APTSO ¶ 33. 97 Id. ¶ 44. 98 Id. ¶ 35. 99 Trial Tr. 111:12–112:14 (JaKara Vester). 100 Id. at 111:12–17, 114:21–116:10. 101 JX 15, at 2–3; see also Trial Tr. 115:7–117:2, 118:10–16 (JaKara Vester); JX 88. 102 Trial Tr. 118:10–13 (JaKara Vester).

17 Premier, under instruction from the Association, did not reactivate the

Vesters’ pool access, despite the Vesters’ requests. 103 Mrs. Vester e-mailed Premier

and made several visits and calls to their office.104 She sent an August 10, 2011 e-

mail, in which Mrs. Vester detailed her frustration with Premier and the Association,

the efforts she had taken to reactivate her pool access, the reasons she believed that

her driveway modification had been previously approved, and the importance of

pool access to her special needs child.105 Mrs. Vester concluded the e-mail by stating

that if her pool access was not reactivated and her concerns not addressed, she “will

be forced to seek the advice of an attorney.” 106

Ultimately, the Vesters’ pool access and key card were not restored until

August 17, 2014, which represents a period of over three years without access. 107

E. The Vesters and the Association Both Seek Recourse

1. The Vesters’ Complaint with Delaware Division of Human Resources

On November 23, 2011, the Vesters filed a pro se complaint with the

Delaware Division of Human Resources (the “DDHR”) against the Association,

alleging housing discrimination. 108 The DDHR then prepared a complaint it sent to

103 APTSO ¶¶ 33, 36, 44. 104 Trial Tr. 114:21–119:16 (JaKara Vester); see also JX 88. 105 JX 88. 106 Id. at 3. 107 APTSO ¶ 36. 108 JX 22.

18 the Association on December 21, 2011, accompanied by a questionnaire that the

Association was required to fill out.109 The Association completed its response to

the questionnaire on January 13, 2012. 110 The Vesters received the Association’s

response in January of 2012, and at that time learned that the Association considered

the Vesters to be in violation of the Declaration because of the plantings and the

garbage receptacles, in addition to their driveway. 111 The record produced at trial

does not indicate how the DDHR investigation was resolved.

2. The Association Initiates Litigation in the Court of Chancery

Prior to October 12, 2011, the Association’s counsel had already begun

drafting a complaint against the Vesters.112 On February 7, 2012, the Association

filed a Complaint against the Vesters in the Court of Chancery. 113 The Association

brought three counts for violations of the recorded restrictions in the Declaration,

and sought injunctive relief.114 The three violations were for the driveway, the

plantings, and the trash cans.115 As described, these violations have been resolved.

On August 15, 2017, the Association’s claims were dismissed as moot, following

Oral Argument on the Vesters’ Motion for Summary Judgment on the same day. 116

109 JX 23. 110 JX 25, at HL000724. 111 Trial Tr. 129:13–20, 178:5–16, 183:18–184:3 (JaKara Vester). 112 JX 81, at HL000849. 113 See D.I. 1, Verified Petition for Enforcement of Recorded Restrictions. 114 Id. 115 Id. 116 D.I. 147.

19 F. Evidence in the Record of Discriminatory Intent

The gravamen of the Vesters’ Amended Counterclaim is that they have been

discriminated against by the Association and the other homeowners of Henlopen

Landing. The body of evidence supporting this claim comes almost entirely from

Mrs. Vester’s testimony. Mrs. Vester testified that other homeowners in Henlopen

Landing or employees of Premier made comments to her indicating that “some

people” in Henlopen Landing believed it “should be like a retirement

community,” 117 that she was told that she “should be on a cul-de-sac if [she has]

kids,” 118 and that she received violation notices initiated by the complaints of other

homeowners because, according to Mrs. Vester, those homeowners did not like

children, and/or did not approve of interracial marriage and biracial children.119 Mrs.

Vester’s testimony as to those statements was not supported by the testimony of

others (or record evidence), including, in some cases, those who she stated shared

such comments with her.120

G. The Association and the Vesters’ Currently

The Association concedes that the Vesters are currently in compliance with

the Declaration and by-laws governing Henlopen Landing. 121 As mentioned, the

117 Trial Tr. 92:18–93:4 (JaKara Vester). 118 Id. at 95:12–19. 119 Id. at 117:3–118:9. 120 See id. at 206:16–207:4 (Larry Hofer); id. at 53:17–54:5 (Jami Harrigan-Faro); id. at 293:12– 294:21 (Jeffrey Rice). 121 See, e.g., Pet’r’s Opening Br. in Support of its Fee Application, at 1–2.

20 Vesters’ pool access was restored on August 17, 2014. However, the Vesters never

constructed a fence enclosing their backyard. They still desire to construct a six-

foot-tall fence that enclose the side door of their garage. The record does not reflect

why the fencing that was approved to accommodate ZaKai was not built. Since their

request to extend the fence was denied, the Vesters have provided additional

information regarding ZaKai’s disability to the association.122

H. Procedural History

The procedural history of this case is long; interested readers should consult

the docket. Suffice it to say, this action began with the Association’s Petition, filed

on February 7, 2012. The action was removed to Federal Court and then remanded

(to this Court). 123 After more than seven years (and a Master’s report, exceptions to

the Master’s report, motion practice, and judicial mediation),124 trial was held on

February 19, 2019 on only the Vesters’ counterclaims (which added Premier as a

party to this litigation). The Petitioner’s claims, as mentioned, have been mooted.

II. ANALYSIS

My discussion is below. I note that there are a number of inconsistencies

between the allegations of the Amended Counterclaim, the pretrial stipulation, and

the post-trial briefing. In an attempt to address the Counterclaim-Plaintiffs’ claims

122 See, e.g., JX 33. 123 See D.I. 8; D.I. 9. 124 See D.I. 61; D.I. 86; D.I. 129; D.I. 150.

21 comprehensively and efficiently, my analysis is organized by the three alleged

statutory violations (each alleging a corresponding violation of both the Federal and

Delaware Fair Housing Acts)125 as set forth in the Amended Counterclaim. With

respect to each, I set out the statutory elements of the claims as the parties have

stipulated in the pretrial order. 126 I then address the arguments of the parties

regarding the evidence of record as set out in the post-trial briefing, and then, to the

extent necessary, any other allegations to the extent not waived.

A. Intentional Discrimination

In Counts I and IV of their Amended Counterclaim, the Vesters allege that the

Association and Premier have intentionally discriminated against them based on

their race, their familial status, and their child’s disability, in violation of State and

Federal Fair Housing law. 127 To establish a prima facie case of intentional

125 The Vesters bring various claims against the Association and Premier under both the Delaware and Federal Fair Housing statutes. These statutes, to a large extent, mirror one another. Therefore, I discuss the alleged violation of analogous provisions together. See Newark Landlord Ass’n v. City of Newark, 2003 WL 21448560, at *9 (Del. Ch. June 13, 2003). 126 The parties have agreed on the elements that the Counterclaim-Plaintiffs need to establish for each violation of the FHA. APTSO, Ex. A. I have accepted this stipulation, without independently confirming its accuracy. 127 According to 42 U.S.C. § 3604(b), “it shall be unlawful . . . [t]o 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 race, color, religion, sex, familial status, or national origin. According to 42 U.S.C. § 3604(f)(2), “it shall be unlawful to . . . [t]o discriminate the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available.” According to 6 Del. C. § 4603(b)(2), “it shall be unlawful . . . [t]o 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 race, color, national origin,

22 discrimination the Vesters must prove that a similarly situated party, during a similar

time period, was treated differently by the Association (or Premier), and that this

disparate treatment was due, in part or in whole, to discriminatory intent.128

Discriminatory intent, in turn, may be shown through either direct or circumstantial

evidence.129 If circumstantial evidence is employed, the McDonnell Douglas burden

shifting framework is employed, whereby: the Vesters must show the Counterclaim-

Defendants acted with discriminatory animus towards them; which shifts the burden

to the Defendants to show that acts were taken with a non-discriminatory interest;

which would again shift the burden to the Vesters to show that alternative practice

was available, which has a less disparate impact and meets the legitimate needs of

the Defendants.130

1. The Suspension of the Vesters’ Pool Access

The only discriminatory act to which the Vesters point in post-trial briefing is

the suspension of their access to the community pool. It is clear that for three years,

the Vesters’ access card was disabled, and thus the Counterclaim-Defendants treated

the Vesters differently than other property owners, who had use of the pool.

religion, creed, sex, marital status, familial status, source of income, age, sexual orientation, gender identity or disability.” 128 APTSO, Ex. A., at 1. 129 Id. 130 Id.

23 However, the Vesters have failed to show that their use of the pool was suspended

because of their race, familial status, or disability (or other impermissible criteria).

The Vesters applied to the ARB for permission to alter their driveway. Such

alteration, per the Declaration, requires written permission of the ARB. Driveway

alteration can affect storm water drainage. Such an action therefore requires “a

certification of non-effect of said plans” on drainage from a professional engineer

licensed in the State of Delaware.131 The Vesters’ application, however, did not

attach such a certificate, nor did it even contain a statement from the contractor

addressing drainage. I note that the record suggests that the ARB has been

inconsistent on what it has required regarding proof that a driveway alteration will

not affect drainage, from nothing, to a statement by the contractor. After the ARB

considered the Vesters’ application, it deferred the matter, and requested “a plan

from the contractor indicating the slope of the driveway is interior, not exterior.”132

There is no evidence that this request was made as a result of invidious

discrimination, and I find the request itself was not discriminatory.

The Vesters obtained a plan from their contractor that appeared to satisfy the

condition of the ARB, but I find that a copy of the plan was never given to the ARB.

Mrs. Vester did inform Ms. Roach at Premier that her review of the paving proposal

131 JX 26, § 7.3. 132 JX 14.

24 indicated that the grading would be “interior” and that she had asked the contractor

to “make that clear,”133 information that Ms. Roach agreed to pass on to the ARB,

but it has not be shown that the actual plan was given to the ARB (or Premier).

Nonetheless, a week later, Mrs. Vester inquired of Ms. Roach about the status of the

applications (which included the fence, gazebo, and water well applications as well

as the driveway alteration; some of which had already been approved), and Ms.

Roach responded “all has been approved.” This was an error—in fact, the ARB had

not approved the driveway.

Relying on the email from Ms. Roach—and without the written permission of

the ARB as required by the Declaration—the Vesters had their contractor alter the

driveway two weeks later on August 4, 2011. It was in this context that the Vesters

were denied use of the pool by Association. The Vesters were informed that their

common area access was cut off because they had altered the driveway without the

prior approval of the ARB. Shortly thereafter, on August 10, 2011, Mrs. Vester

informed Premier that if her family’s access was not restored, she would consult an

attorney. On August 22, 2011, the Association demanded a professional engineer’s

certification on drainage before approving the driveway alteration. Such a

certification is required in the Declaration, but had not been required of other

residents altering driveways. A year would pass before the Vesters complied.

133 JX 15.

25 Because this is a statutory discrimination claim, I need not determine who was

at fault for the series of misunderstandings here. Premier told the Vesters that “all”

their requests had been granted by the ARB. This was untrue, but was relied upon

by the Vesters. The Declaration, however, required written authorization from the

ARB before driveway alteration could commence, and the ARB had informed the

Vesters that it would not consider the request without a contractor’s statement that

drainage would be “interior,” a statement that, I find, it did not receive before the

Vesters’ contractor altered the driveway. Once Mrs. Vester threatened legal action,

the ARB insisted on a professional engineer’s report on drainage, in compliance with

the Declaration but not consistent with prior practice with other homeowners. In

this context, the pool access was cut off. This was a coercive action specifically

contemplated by the Declaration. 134

In other words, I find that the denial of common-area access was not based on

racial, familial status, or disability discrimination. It was instead part of a dispute

over the Vesters’ alteration of their driveway without written approval of the ARB.

The actions of the Association may appear excessive and petty, and denial of pool

access continued after the time permitted by the Declaration. But I find that the

134 Access was denied long after the professional engineer’s report was provided to the Association, which is not consistent with the Declaration.

26 Association and Premier were not motivated by discrimination as defined by the

statutes.

Mrs. Vester attempted to bolster her contention that invidious discrimination

was at work by pointing to hearsay (and double hearsay) statements indicating that

homeowners within the Henlopen Landing held discriminatory animus toward

children and interracial couples. The statements, however, were made in the context

of the violation notices based only on the complaints of other homeowners, which

the Vesters had received prior to June 2011. Even as described by Mrs. Vester, no

specific statement pertained to the Association’s decision to suspend the Vesters’

pool access. Furthermore, Mrs. Vester’s testimony was controverted by some of the

same people whom she alleged made the statements at issue.

2. Violation Notices

The Vesters, in their post-trial briefing, focus exclusively on the suspension

of pool access to show discrimination. In their Amended Counterclaim, the Vesters

had contended that notice of violations given by Premier to the Vesters in the months

before the driveway application was made were based on discriminatory animus held

by other homeowners, causing those homeowners to make spurious complaints to

Premier, which caused Premier to issue the violation notices to the Vesters.135

Because this theory was not addressed in briefing, I consider it waived. In any event,

135 Resp’ts’ Am. Answer, Defenses and Countercls., Countercls., ¶¶ 44, 52.

27 the Vesters point to no evidence that Premier was acting with discriminatory intent

with respect to these notices, which were resolved between Premier and the Vesters

amicably by removing the notices from the Vesters’ record.

B. Reasonable Accommodation

In Counts II and V of their Amended Counterclaim, the Vesters claim that the

Association denied them “reasonable accommodation” under State and Federal Fair

Housing law because of their child’s disability. 136 Specifically, they point to the

ARB’s denial of a request to extend a fenced-in yard to include the side door to the

garage, which would serve to accommodate the need to monitor their autistic son,

ZaKai. To establish a failure to provide a reasonable accommodation, the Vesters

must prove: (1) they or someone in their household is a person with a disability; (2)

the Association knew or reasonably should have known that the Vesters or someone

in their household is a person with a disability; (3) the Vesters requested a reasonable

accommodation in the rules, policies, practices, or services of the Association; (4)

the requested accommodation is necessary to afford the Vesters an equal opportunity

to use and enjoy their dwelling; and (5) the Association refused the Vesters’ request

136 According to 42 U.S.C. § 3604(f)(3)(B), “For the purposes of this subsection, 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.” According to 6 Del. C. § 4603A(a)(2), “[D]iscrimination on the basis of a individual’s disability 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.”

28 to make an accommodation, or failed to respond or delayed responding to the request

such that it amounted to a denial. 137

Per the Vesters, they wished their son to have access to his toys in the garage

and at the same time have access to the backyard, which needed to be fenced because

he is an elopement risk due to his autism. The Vesters allege that their request to

extend their proposed fence to encompass the side door of their garage for this

purpose sought a reasonable accommodation, and the denial of the accommodation

by the Association was therefore discriminatory. The Vesters have, however, failed

to prove, at least, one of the necessary statutory elements; that they requested a

reasonable accommodation from the Association.

In their initial request to the ARB, the Vesters indicated that they sought a

height variance, from four to six feet, for the fence to accommodate the needs of

their son, who, they averred, could scale a four foot fence. The ARB granted that

request. They also sought a variance to the placement of their proposed fence, in

order to extend the fenced yard toward the front of the property to encompass the

side garage door. Such a variance was necessary, presumably, because the setback

requirements for fencing in the Declaration only allow fencing to the midpoint of

137 APTSO, Ex. A, at 3–4.

29 the side of the house.138 According to Mrs. Vester, whose testimony I accept, her

intent in making this request was to accommodate ZaKai’s autism, as described

above. However, this was not what she initially told the ARB in her written request.

To the contrary, she told the ARB that she wanted to allow her dog to come in from

the back yard through the garage, to keep the living areas clean. This was the

rationale initially presented to the ARB, not the special needs of the Vesters’ child.

When this request was denied, the Vesters asked for reconsideration. In their written

request for reconsideration, they still maintained the pretextual rationale regarding

their pet, and added the reasoning that a fence extension would enclose the controls

to their sprinkler system and prevent vandalism. Again, the rationales presented to

the ARB in the Vesters’ written requests for the fence extension were pretext, and

the Vesters did not request an accommodation for the special needs of their child.

The request for reconsideration was not granted by the ARB. Because the Vesters

did not request an accommodation for their son’s autism, the accommodation claim

under the Fair Housing Acts must fail.

The Vesters never explain why they did not state in their applications to the

ARB that the fence-extension request was to accommodate ZaKai’s special needs.

The ARB was aware of their child’s special needs, because the Vesters requested a

138 I need not resolve the deed restriction issue here, but I note that the fencing restriction is ambiguous. I also note that no scale drawing or other cognizable evidence gives me the dimensions of the house and yards at issue.

30 variance of the permitted height of a fence on that same ground. This height variance

was granted, and was granted explicitly to accommodate their child’s needs.

I do not know the Vesters’ rationale for disclosing the need for an

accommodation for fence height, but not disclosing the true purpose for the extent

of the fence in their written variance applications. They may well have believed that

their actions were in the interests of their family, in a way not obvious to me. But

they cannot base a reasonable accommodation claim on the ARB’s denial of the

fence extension, under these circumstances. Nothing herein relieves the ARB from

addressing the Vesters current fence variance request, an issue addressed below.

C. Retaliation

Finally, in Counts III and VI of the Vesters’ Counterclaim, the Vesters allege

that the Association has retaliated against them for attempting to exercise or enjoy

their rights under State and Federal Fair Housing Acts. Such retaliation would

violate the Acts. 139 To prevail on this claim, the Vesters must show: (1) someone

in their household is a member of a protected class, (2) they enjoyed a protected

right, (3) the conduct by the Association was motivated, at least partially, by

139 According to 42 U.S.C. § 3617, “It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.” According to 6 Del. C. § 4618, “It shall be unlawful to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having exercised or enjoyed, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by § 4603, § 4604, § 4605 or § 4606 of this title.”

31 intentional discrimination, and (4) the Association coerced, threatened, intimidated,

or interfered on the account of the Vesters’ exercising their protected right. 140 The

Vesters, a mixed-race family with an autistic child, are members of a protected class.

However, I do not find that the Association was motivated by discrimination, leading

it to interfere with exercise of a protected right of the Vester’s.

1. The Filing of this Action

The Vesters sought to exercise their rights under the Fair Housing Acts by

bringing a complaint before the DDHR. The Vesters, in their Amended

Counterclaim, suggest that the Association took two retaliatory actions, “raising

unfounded concerns about the driveway alteration” and commencing this action. In

Post-Trial briefing the Vesters focus their argument entirely on the Association’s

decision to bring an action in the Court of Chancery against them. 141

The Vesters argue that the Association, by bringing this action, has unlawfully

retaliated against them for exercising their rights under the fair housing laws by

bringing their complaint with the DDHR. The Association would have become

aware of the Vesters complaint to the DDHR when the DDHR provided it with the

Vesters’ complaint on December 21, 2011. By the Vesters’ own admission counsel

140 APTSO, Ex. A, at 5. 141 By not arguing that they have demonstrated actionable retaliation relating to the driveway alteration in post-trial briefing, I find, the Vesters have waived the argument that the Association’s actions regarding the driveway alteration are retaliatory in violation of the Fair Housing Acts. In any event, for reasons explained at length above, I do not find the denial by the ARB of the request to alter the driveway was motivated, in part or whole, by intentional discrimination.

32 for the Association had begun drafting their Petition against the Vesters at least as

far back as October 2011. 142 While the Association’s Petition was not filed until

February 7, 2012, preparation had begun before the Association was aware that the

Vesters had filed their own complaint with the DDHR. The Association’s Petition

sought to enforce three restrictive covenants, related to the Vesters’ driveway, the

plantings, and the placement of garbage receptacles.

The Vesters were aware that the Association considered their driveway, as

altered, to be non-compliant, however, the Vesters allege that they had received

approval (evidenced by the email from Premier) for the work, and that the

Association’s allegations of non-compliance were pretextual and discriminatory.

The Vesters also, I assume, believed they would be vindicated through their DDHR

complaint.143 From the perspective of the Association, however, the Vesters had

violated the Declaration by submitting an incomplete application for driveway

alteration, and by altering the driveway without the written permission of the ARB.

I find no evidence that the Association’s motivation in this action to enforce the

Declaration regarding the Vester’s driveway alteration is pretextual or motivated, in

part, by discrimination, or is in retaliation for the exercise of the Vesters’ rights under

the Fair Housing Acts. To the contrary; I find the action was brought because from

142 Countercl. Pl.’s Post-Trial Closing Arg., at 20. 143 The record at trial appears to be silent as to the outcome of the Vesters’ complaint before the DDHR.

33 the point of view of the Association, the Vesters had responded to the ARB’s request

for more information regarding drainage with a self-help construction of the altered

driveway, creating a fait accompli and denying the ARB the opportunity to fulfil its

duty under the Declaration. It is worth noting that there is no evidence, or even

suggestion, that the litigation in this Court was an attempt by the Association to

coerce the Vesters into dropping their DDHR complaint.144 The Association’s

complaint that the Vesters were in violation of the Declaration with respect to the

driveway, I find, was brought in good faith, not for reasons of discrimination or

wrongful retaliation.

The Vesters point out that the Association included in their Complaint

allegations that the Vesters were in violation of the Declaration in two additional

ways. First, the Complaint included the allegation that the Vesters were not keeping

their trash cans in the garage or in an enclosure, in violation of the Declaration. This

was, in fact, true, and the Vesters have since constructed a compliant enclosure for

the trash cans. Second, the Association alleged that the Vesters had placed small

trees in the common areas, also in violation of the Declaration. Again, this was true.

The Vesters have caused the trees to be removed. These allegations of the Complaint

have been vindicated, and the requests for relief from the violations mooted.

144 See 42 U.S.C. § 3617.

34 The two allegations were also picayune and petty. The Vesters did not receive

violation notices prior to the Association bringing this litigation, which might have

avoided the need for these counts being part of the Petition. The record, I note,

indicates that the Association had not previously brought legal action to enforce the

Declaration against any homeowners, and certainly not before providing notice to

the homeowner of a violation. While the inclusion in the Petition of the driveway

alteration was substantive and reasonable, the allegations regarding the tree planting

and trash can storage appear to be an attempt to lard the complaint with minutiae, as

a hard litigation tactic. The record does not suggest it is more than that, however. I

do not find adding these claims was in part retaliatory for the exercise of rights under

the Acts, or based on discrimination because of race, family or disability.

2. Other Basis for a Retaliation Claim

The Vesters claim that the ARB’s driveway concerns were unfounded, and

were simply a way to harass the Vesters in retaliation for their request for a fence-

location variance for their child. This claim fails, I find, for several reasons. I have

explained above that there was a good-faith reason for the ARB’s request for

drainage information before permitting the driveway alteration. This retaliation

claim must fail for another reason: the ARB granted the request for a fence variance

to the extent the Vesters sought an accommodation for their son’s special needs.

35 There is simply no basis to find that the ARB refused an accommodation, let alone

that it retaliated for the mere request for an accommodation.

D. Remaining Issues

The Association seeks a mootness fee for obtaining compliance with the deed

restrictions of the Declaration, with respect to the driveway, the tree plantings and

the trashcan storage. They claim to be entitled to recover legal fees from the Vesters

under 10 Del. C. § 348(e) (as well as 25 Del. C. § 81-417(a)). The Vesters, I note,

did not seek contractual, as opposed to statutory, damages for the wrongful

continued denial of pool access (that is, denial more than 90 days after the Vesters

provided the requested professional engineer’s report). It is unclear, however, if the

Vesters seek to offset any contractual damages against any fee the Association may

recover under Section 348. Finally, the Vesters still seek an accommodation for

their child’s autism in the location of the fence, the ARB should act on this request

promptly, based on the Vesters’ true reason for applying for the variance, as an

accommodation for their child’s disability, as well as the information submitted by

the Vesters since the variance was denied. I retain jurisdiction to oversee this

request.

III. CONCLUSION

The Vesters have failed to show a basis for their State and Federal Fair

Housing Claims. The parties should confer and inform me of how the remaining

36 issues should be addressed, and provide an appropriate form of order concerning the

statutory claims, consistent with this Memorandum Opinion.