Limited duration property improvements for disabled child may violate Fair Housing Act

The Second Circuit holds that a town in western New York may have violated the Fair Housing Act after it gave homeowners a chance to modify their property to accommodate their disabled child but required them to eliminate the improvements once the child stops living there.

The case is Austin v. Town of Farmington, decided on June 21. When plaintiffs moved to the town with their severely disabled son, they ran into zoning restrictions. The problem was the parents wanted to install a fence to keep the child within the yard, and an above-ground pool that would provide aquatic therapy. The town granted plaintiffs a variance and allowed them to put up the fence and pool. The catch was that the fence and pool must be removed from the property after the child stopped living at the property, or when plaintiffs sold the property. It cost the family over $30,000 to put in the fence, pool and deck. They then sued the town under the Fair Housing Act.

At first glance, I did not see the legal issue here, and there is not much case law governing disputes like this. The town granted plaintiffs the accommodation when they moved in. But while the town does not want the variance to run with the land -- allowing later occupants to enjoy the improvements -- plaintiffs want to avoid the cost of tearing down the improvements. They also want to capture the increase in value of the property caused by the modifications if they ever sell the property. The Second Circuit (Winter, Raggi and Droney) says a juror "might find that a restoration requirement in some circumstances so burdens a party wanting to modify a property to accommodate a disabled person that it amounts to a refusal of a reasonable accommodation."

As always in reasonable accommodation cases, the issue of "reasonableness" is complicated, with balancing factors that often require a full evidentiary record. When you draft a law that turns on "reasonableness," you are asking for a lawsuit. Here is how the Court of Appeals sums up the competing interests and balancing factors:

Applied to the context of land-use regulations, relevant factors may include the purposes of the restriction, the strength of the Town’s interest in the land-use regulation at issue, the need for uniformity, the effect of allowing later landowners without a disability to enjoy the lack of a restriction on pools, decks, and fences, while all their neighbors are subject to it, the likelihood that a permanent variance will cause other landowners subject to the regulation to seek similar variances, etc.

Balanced against those factors is the cost of removal –- again, whether out of pocket or in a reduced sale price. We say no more because there are undoubtedly a host of relevant factors looking in both directions to be considered. Moreover, we do not want to make gratuitous statements that may seem to address other of the multitude of land-use regulations, e.g. historic landmarking, etc.