Jersey City, New Jersey. Credit: Shutterstock.com

A disability suit by a Jersey City homeowner against the city for denying her request to build a carport in front of her yard instead of installing a handicap parking spot can proceed, according to a U.S. District Court judge.

Judge Esther Salas’s ruling on April 12 denied defendant Jersey City’s motion to dismiss the case. The lawsuit was decided without oral argument.

“In short, the Court holds that the instant controversy is fit for judicial resolution and that plaintiff would suffer hardship absent judicial consideration,” Salas wrote in her court opinion.

Joanne Gifford wanted a carport installed in front of her single-family home within the Journal Square 2060 Redevelopment Plan in Jersey City, she claims, to ease the burden of having to walk too far to her vehicle. She alleged her left foot and ankle—injured many years ago—had rendered her disabled with limited mobility and that merely walking or standing caused her a lot of pain.

Gifford alleged her carport request was not unreasonable since 80 percent of the homes on her block have off-street parking in their front yards. The curb cutout for her driveway was so she could park off-street like them, she contends.

In her complaint, she claimed the city denied her carport request and, in so doing, violated her rights under four statutes.

In addition to Gifford sufficiently showing that the carport is necessary and that not having it would cause her immediate hardship, Salas ruled the city’s denial of her carport request would also adversely impact Gifford’s right to use and enjoy her property.

And based on the actual filing date of her suit, Salas said Gifford’s claims rightfully fell within the two-year statute of limitations to seek relief.

Marsha Marie Moore of Post Polak in Roseland, who became Gifford’s counsel on April 4, 2018, could not be reached for comment.

Attorneys for the Jersey City Law Department, Stevie Darrel Chambers and Itza Giselle Wilson, who are representing Jersey City in the suit, did not return calls or emails.

On April 4, 2018, Gifford filed suit against Jersey City over four claims: Count 1—intentional discrimination in violation of the Fair Housing Amendments Act (FHAA); Count 2—discrimination in violation of the Americans with Disabilities Act (ADA); Count 3—discrimination in violation of the New Jersey Law Against Discrimination (NJLAD); and Count 4—violation of the New Jersey Municipal Land Use Law (MLUL).

Gifford contended her claims under the first three statutes accrued sometime after the submission of her attorney’s December 2016 use variance application and, therefore, met the two-year statute of limitations on all three counts from her April 4, 2018, filing date.

In August 2014, Gifford made a request to the City Planning Board seeking permission to put a driveway curb cut to build a carport on her front yard.

The planning board advised plaintiff that such curb cuts are not permitted under the redevelopment plan and that she should instead apply for a handicap parking spot in front of her property.

In September 2014, Gifford advised the city that the recommended handicap parking spot would not be a reasonable accommodation for her needs.

By letter dated Sept. 15, 2014, the city advised plaintiff to file an application with the Zoning Board of Adjustment for permission to deviate from the redevelopment plan.

According to the Journal Square 2060 website, the purpose of the redevelopment plan is to return the area to a flourishing, central business and shopping district by developing new housing, offices, commercial and public open spaces within walking distance to the Square and transit facilities.

In December 2016, Gifford’s attorney at the time filed an application for a use variance to build her desired carport. She also filed a request for a waiver of the $5,000 application fee to amend the redevelopment plan.

In response, the city advised Gifford that a carport was prohibited under the redevelopment plan and that Jersey City would oppose any such variance to add one.

On Jan. 4, 2017, Gifford again requested a reasonable accommodation to build the carport because she said the suggested on-street handicap parking spot “would be farther than she could tolerate without undue pain and hardship” in court documents.

She also alleged the handicap spot was obstructed by a bicycle lane and inaccessible on designated street-cleaning days.

Nearly 16 months passed without the matter being resolved.

Gifford filed her suit against the city on April 4, 2018.

Gifford asserted that Jersey City’s failure to properly consider her attorney’s variance application on her behalf was “tantamount to a formal denial,” and the continued denial will cause her to incur hardship and unnecessary expenses.

Salas agreed in allowing her suit to move forward.

“The complaint indicates that plaintiff has tried to acquire a formal decision on her variance 2016 application, and that defendant has refused to formally consider her application,” Salas wrote. “Consequently, the issues are fit for judicial decision.”

Salas said the court concluded that Gifford “will endure an immediate and significant hardship without judicial consideration” and that she was being denied the equal opportunity to use and enjoy her home.

“Thus, plaintiff suffers from an immediate, concrete, and significant legal hardship today, and any delay will only increase that hardship. …Defendant’s apparent denial of plaintiff’s request adversely affects her right to enjoy her property,” Salas wrote.

Salas said Gifford also has sufficiently shown that her claims are not barred by the applicable two-year statute of limitations for the FHAA, ADA and NJLAD claims.

“While defendant asserts that it never received a variance application in December 2016, plaintiff has properly alleged that fact in her complaint,” Salas wrote. “At the motion to dismiss stage, the Court must accept as true the factual allegations properly made in the complaint and must give plaintiff the benefit of all favorable inferences drawn therefrom.

“Thus, plaintiff has asserted that the allegedly wrongful act occurred during or after December 2016, which is less than two years from the April 4, 2018 filing date of the complaint,” she wrote.