the judges in the united states court of appeals for the fourth circuit please the court my name is charles ferguson and i represent the appellant's in this fair housing act dispute and with me in the courtroom today is also telling jacob sco both necessary and reasonable as a matter of law whether the district court erred in granting summary judgment in favor of the pelleas when the appellant proved that the modification request was necessary as a matter of law and also airing request would be the use of the roads and the ramp would be the modification request and i'd like to begin with the a t v request for the roads and there are three arguments that we have on that the first ha to do with two elements the necessary element and also the element of reasonableness and then there is the final issue of the constructive denial which is an issue that i'd like to address for her son jacob to use in traveling the roads of police crossing to visit friends and also specifically to work for a neighbor who had employed him the day after the e mail was generated making the request defendant merritt sent out an email to the other board members quickly announcing himself as the voice of dissent in opposing the request and i quote without discussion or deliberation waited to hear back from the association about the request there were two ford meetings one occurred in july of two thousand and the other occurred in september seventeenth two thousand the first board meeting was held by a quorum not everybody was present and no one took any action but more importantly there's no evidence the whole time that it's ever been presented that indicates that anybody told the scoggins about the fact that their request was going to be addressed to you the one of these board meetings between july and and september the board took no additional action to gather any information or gather any facts about the requests about mr scoggins disability about the type of a wanted to use and when they came together on seventeenth the record evidence suggests that they hadn't gathered the information they were prepared to make a decision any more than they were during the previous board meeting and there there is testimony in the record from three independent witnesses that suggest that the merits for opposed to the request from the outset and moved to deny the request without having any information where it was left in the minutes now and i understand that the reason they were concerned wouldn't wouldn't  those reasons to scott there is no evidence in the record to suggest that there was ever a communication not an e mail not a letter all of these individual and how did this dog has  learned from neighbors that they had ran into who attended the board meetings what the outcome was and what the discourse was during the board meeting but but more importantly your honor the fair housing act requires some sort of deliberation whether you intend to deny or request or whether you intend to prove it there needs to be some deliberation and interaction and that that burden falls be on private roads there's still cars on that road right that's correct but it's more dangerous to be on the road with cars when you're operating a manual wheelchair use the a t v very safely he has the ability to do it he has the strength to do it though also the other cars ability to see him is not part of the a t v would actually make that issue better for for our young man because he'd be more visible he wouldn't be the other the other apparatuses place and lower to the ground and out of sight the a t v would actually raise his level other other vehicles but they say the safety is an issue that they put forward and they retained an expert in this case the expert in this case is not a physician he's not a rehab specialist he is an engineer who i believe is involved in crash impact he doesn't have any intimate knowledge of mr scoggins abilities he's never observed him operate the a argument your honor and it's not reasonable because the covenants themselves the syfy clee allow for the petition to use an a t v by any homeowner there and that still exists in their a nuisance analysis now one of the concerns they had was that the a t v would spook course but we've shown that their own employees  use off road vehicles and motorcycles which are certainly create a higher level of noise would spook courses and they're not prohibited in the least cross a community so i th reasonable argument to me seems to be unreasonable for lack of a better word and then as far as the necessary element demonstrated that genuine use of public roads on public roads association on either one of these matters on the a t v on the request or the other the a t p request there is no final decision and i back together what they maintain that they've never made they've never denied the request well  that is so then how is this right it's ripe because a constructive denial can take place you know ok show me the evidence of the constructive  the outdoor ramp the outdoor ramp has a history behind it well when was the request i know there is conflicting evidence about there being an oral request but when was the first written  first written request i believe was in august of two thousand and ten august of two thousand and ten when did you correct this when did you file the lawsuit the lawsuit was filed in september i believe and there had been no denial there was a there was a letter denying it from the homeowners association correct actually it's not needed more information and they didn't deny it it's well it is a denial if you look at what's required and not required by the fair housing regulations and also the joint more information there was a boy with a little seed line around the scoop and that's all it's provided and they wanted  i have but the the letter imposes conditions that the regulations suggest and also the joint statements suggest they are not required and some of the information that the letter asked for could have easily been provided after an architect or a contractor was involved the commission to construct the ramp that's essentially not something that needed to be provided in the very beginning the regulations require that it be a reasonable description they also advised in their letter that they'd be building the ramp in accordance with the color and the materials that they used to build the home the letter that you're talking about in this case regarding the ramp a letter from the homeowners so it's actually from the me the letter that appears at twenty fifty three of the appendix dated october eighteenth two thousand yes i believe that's correct that letter says due to numerous missing items in the application unfortunately we were able unable to process please submit the following and then they list several things and says please review this letter loan alone you have to look at it in the total context the history that's gone on the way they were treated we have one written submission but we have an a t v request that was done on time at the ranch we have one written submission has that little one what he's talking about us with the site that demonstrates the size that the ramp would be where is that it should be in the attachment i see the layout of the house i'm looking at twenty thirty twenty feet i believe for the drawing of the house well it's it also which would show the size of the ramp as well take a look at that with me two three twenty thirty nine i don't have it with me your i don't have the joint appendix with you in court i years before about putting a ramp up and the person they spoke to sort of put a halt to that say oh i'm not sure you should can do that and so why don't you put in the garage and they put in the garage that's one  first incident was to build out on the back when they were building about as far as i know is the history of iran then years later they submitted this ramp in writing with that one letter and that drawn and the response is we need more information before we can process and they actually did a little more too because it's the end of the letter it says please note that this is not a substantive nial request for a second grant  requires you to provide a complete application so we can properly determine what you wish to construct so they're being really clear they're inviting the scoggins to give them the information they need letter well but again i go back to the history and what's occurred between the parties in two thousand and three they virtually made a request that one was this is two thousand and ten two this is two thousand and ten seven years do but that's not something that's ever really happened in this case up until the letter that you're looking at you've got six minutes on rebuttal back morning may please the court michael doing that of reed smith or the police lease crossing homeowners association and jack merritt with me is richard kelly of being kenyan corpsman i believe the court has focused on what is the predicate issue in determining whether board meeting in the testimony of the manager mike aren't is that he was instructed to send an e mail to the scoggins requesting information and that he did that but they said they didn't say that there's a dispute in the record they claim that they did not receive that it's not members of the association but people hired to perform maintenance work on the roads for example use some vehicle similar to an a t v but there was no evidence in the record of that  their in their representation was these were again third parties hired to come out and perform maintenance work there is a provision in the covenants that allows for a member of the association to petition for the use of an unlicensed vehicle and that was the provision that mr ferguson was referring to but there is no evidence in the record that there's ever been a request by any other member of the association to use an a t v or that that type of request has ever been  was being discussed so whether they actually received the email from mr orange or not they were certainly aware that they had submitted an application they were told by their neighbors that their application was being discussed the board and the dates for the board meetings were posted on the website the agendas posted on the website there is no evidence in the record that they followed up with anyone to find out what was the status of that request until august twenty sixth two thousand and ten when they filed a written request to the board asking for the use of the a t v at that time john bennett contacted them mr bennett was a member of the associations board of directors and requested information from them regarding the a t v which they refused to provide that was the end of the process so there was no denial of the request for the a t v the thing i don't guess i understand about your theory is if in fact there has been no denial then i don't see how we have jurisdiction but you don't argue that well i mean don't we have to send it back to the district court and have it that's the case without prejudice well the district court found as a matter of law that there was no denial of either the a t v requests or the requests for that that seems to me to get you to a situation which is not right for review not just situation where you win the judgment well i believe that that means it's not right for review i don't disagree with that in the court found it was not right to succeed without prejudice i do not believe the court should dismiss without prejudice why not because we don't have a final if we don't have you understand the concept of  decision there is no there is no final decision but there was a presentation of the rationale for the these requests saying the court treated it is a constructive denial is that it is that appears in the record anywhere that the judge said does not do and do you don't even claim it's a constructive denial and whether what you claim just the reverse there's no denial yes so the court i agree should not have considered the arguments with respect to whether it was reasonable or necessary but having done so and created a record i believe this court can find that it was not right but also but if the requests were not of the reasonable or necessary with respect to the ramp i just want to address a couple of the timing issues the request was made in writing on september twentieth two thousand and ten mr bennett contacted the scoggins on september twenty second two thousand and ten asking for information they refused to meet with him they refused to provide the information they filed their lawsuit on october thirteenth two thousand and ten before the october eighteenth two thousand and ten letter had been sent out and as  court has quoted from that letter it was clearly not a denial ok can you tell me the date of the letter that or the the e mail that you say to some representative of your group sent in response to your discussions letter or email about the a t v i believe that was in july of two thousand and nine september doesn't strike me as a prompt response but you said there was another response there was a lie two thousand and nine and that's what i'm looking at now and looking at the record mart i believe there was an email from mr r to mr beckwith regarding sending the email to the scot twenty one forty six yet it says in the i don't know if that's true because that is the everything is the numbers are not sometimes don't you think if you want but that's what the index is if twenty one forty six  this is a draft of the email that mr aren't supposed to send to the scoggins in the ass or import from the board members so we don't know she didn't send it when he testified that he did send it but he doesn't have a copy of what he did sen edge you would think your honor and we certainly hope that mr r had saved that email but we were not able to recover that sort of indicate he didn't send it well his testimony was clear that he did send it when he has this draft you must have had to get retrieve that from sent messages to understand and where there's no explanation as to why we could not find that email from him there was evidence nonetheless that the eighty scoggins were aware that this issue was being discussed by the board because they were told this by their neighbors as mr ferguson pointed out they made no effort to contact the border twenty dollars you're on the same page and i'm going to whether we have constructive denial here or not and if the 's a pretty good argument there has been a constructive thank you but the the next request in the requests at issue in this case was the written request of august twenty sixth two thousand and ten so well but you acknowledge that  made a written request in two thousand and nine how many requests to she have to make she made a written request in may of two thousand and nine to the manager and the board instructed the manager to contact this guardians to obtain the information they believe that that had been done obviously there was a miscommunication between mr aren't in the scoggins but it seems to me it's incumbent upon the scoggins especially when they know that it's being discussed at board meetings to take some affirmative steps to either here we've got to write that she sent the email in two thousand and nine and she gets no response until she sends another e mail in two thousand and ten but she's told in the interim you're out of it the board is considering goggins never communicated but they were aware that their request was being considered by the board seems to me that very heavy an obligation to come forward and and ask or clarify what is it that you're considering what do you need for months when they came forward with a written request directly to the board in august of two thousand and ten there was a prompt response from mr bennett they were here for the two thousand and ten request so she basically recognizes that it's been discussed but she says you're ignoring them basically it's getting long i'm not making any other requests right and what was the response to that august twenty six john bennett who was a board member and had been a liaison between the board and the scoggins for several years contacted them at the same time he had contacted them regarding the ramp request to ask for additional information with re believe that since he was not a member of the eight or b but there was no reason for her to talk to him or to provide information one percent of what was the date i'm sorry one was sent file suit was filed on october thirteenth two so they simply followed that same pattern asked him to follow up and actually go to their home and meet with them to obtain the information necessary what's required to get bored  what's required with respect to the ramp you set out in the october eighteenth two thousand and eleven with the a t v what they were asking for is what is the type of a t v they've got has it been well scoggins represented it has been mention of that had to do with maintenance workers who come out every so often to do work with respect to the roads of the community are they people they're people but they're not who are using a t v s on the road to the neighbor nomi and they're using what are called gaiters which is a different device and there is no evidence in the record of where they use them but it's infrequent in our understanding is it was on the side of the road to facilitate their maintenance of the roads at least crossing but looks like there isn't anything focused going forward i know the boards of voluntary organization in these there are people but they have a serious request here before all one has to approve that ramp now apparently it's on the to get some information and that sounds reasonable to me based on on what the application looks like but the a t v what's holding you up what they were trying to do your honor before they made a decision was to gather as much information as they could this is a volunteer board they weren't aware that the state of virginia had a law prohibiting a t v s they had not read the manufacturer's information saying that we st warned against using it on the roads they were trying to gather information to make the best decision that they could well this is what era we're in now thirteen how they responded you know there are a stop with the lawsuit with the lawsuit response really was in in responding to this lawsuit so they've stopped working on this because the lawsuits pending now what they've concluded once they've reviewed and hired an expert on a t v safety and were made aware of the statute in virginia and reviewed the honda manufacturer's literature that it is not a safe because they filed a lawsuit before that could be done what's wrong with a lawsuit that on the stop and they're still live in the community and they still don't ask for the accommodation you can turn it down that's what you want to do the view of the board the lawsuit preempted that normal process and then the response was within the context of the litigation and clearly the response in the context of the litigation is this is not a safe activity and that's the reason for its denial can you make any representation to us about what the board would do is going to do on both of these if the information provided by the ramp is given the ramp would be approved the a t v would not be approved because it's just not safe and in the context of trying to resolve even this appeal that was the holdup they refuse to go through the process if they had done that and it's been two and a half years now the ramp would have been approved mr merritt said as much more of the declarations filed with and i think that's a good thing you see to it when you're recounting history you've got a fairly rare cabinet but i understand there's no question there were issues with the scoggins in the past but those it all been on as early treated by the board what's that they believe that they have been unfairly treated by the court and the information in the record demonstrates that there were letters from the scoggins apologizing to the board for numerous violations but whatever those issues were the board was able to work through them by with them and changing information the board would have done the same thing here mr merritt and his wife or two people on a five member board if they had provided this information the board members are all in agreement that they would approved this ramp but there's a certain policy a certain procedure that the board feels compelled to follow so if that had been done then yes that would have been granted thank you mr ferguson supply why hasn't that meant that well at that time that wasn't the feeling and the reason i mean the feeling they gassed for something and they said we're not denying that we need this information and you said you're prepared to give it well so why not give it that time we were then it seems to me at this point you're asking us to rule on the record as it sits and say whether the board was justified in taking no further action because you didn't respond well and that's really what you're saying at that time they were not intent on supplying anything or and the board didn't get anything further and so it's not just simply an incomplete application it's an incomplete application which the scoggins are intending to stand on or your some indication about comments that came from neighbors about the particular board meeting that was just being discussed and i want to point out that these comments came from neighbors learned about the the september board meeting well after it occurred and the feedback that they were receiving from neighbors that came in and criminally was that the merits were opposed to the request the request was close to being if i may move on to the the it would be the august twenty sixth two thousand and ten request for the brand and jon benet's response jon benet's response was received it's being totally disingenuous because there is commentary that's going back and forth where the so called liaison person who was assigned to help the scoggins address earlier covenant violations that occurred years before he was the person that was supposedly assigned to go visit with the scoggins after the september two thousand and nine board meeting and he's the liaison and now he's responding to these e mails what what's the nature of your son's disability again who is your son what kind of day it came across so totally disingenuous for somebody who so involved in the process and nowhere mentioned in that e mail is any comment about mr scoggins i tried months ago to reach out to you i drove by your house on this particular day i sent you an e mail on this date nothing at all and you would think that in a communication like that had they really followed up after the september board meeting and gone to visit with the that there would have been a comment like that but there was nothing at all it was almost like radio silence toward that issue and a question of what's the nature of your son's disability again and so i think it's pretty reasonable that someone could interpret something like that to mean here we go again i'm getting the runaround again and that's what prompted the august twenty sixth two thousand and ten e mail i'm not sure at this point your honor about what their concerns limit i believe your honor that if it's an alternative it presents a safer alternative than anything else that anybody else has come up with and there was never any objection to him taking to the roads in a manual wheelchair to try circl oppose a bicycle or tries it or something else on the road where it's not an issue in this case i would wreck the spec we submit if somebody said i want to use wheelchairs on public roads the state of virginia wouldn't approve it and i would say the same thing that on the private lives it wouldn't be either but that's not a force that issues and to argue that seems to me doesn't advance all i think the issue in this case is we have two requests for combination we might be approved you are skeptical about the record leaves it that they've requested information and you've taken the position you're not going to submit and so it seems to me you're leaving us with only the choice to rule on the record as it is whether the board is justified in requesting the information because otherwise it seems to me the raffle be a done deal but correct your honor i don't know if  i've done what i'm supposed to do procedurally but i don't know what i was supposed to reserve rebuttal time for their appeal or not or whether i'm completely out about their appeal i'm sorry they haven't talked with you think they're going to get time extra time i do support their ruling your honor and it's a fair housing claim and the public policy considerations outweigh the contractual issue and it is a comes the great issues what if you and i get together and say we recognize that the fair housing act as a portion attorney's fees in the fashion that the law is done so but why don't you and i agree that in connection with any fair housing claim leach where our own expenses could we do that and maybe