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Whether Restoration Requirement in a Grant of a Building Modification to Accommodate a Disability Violated the FHA

     The  Second Circuit Court of Appeals partially reversed the dismissal of a Fair Housing Act (FHA) claim which arose when a Town granted permission to modify a property in order to accommodate a disabled child, with the requirement that the property be restored when the child no longer resided there.  In Austin v. Town of Farmington, the Court held that the district court had improperly dismissed the claim of of violation of the FHA, as on its face the complaint raised issues that could only be determined by a further review of the evidence.
     The Plaintiffs had purchased a home in a location which did not permit fences or pools. They sought an accommodation from the Town. for their disabled child, to allow a fence for reasons of safety and an above ground pool and deck, which would provide certain health benefits.  The Town granted what is referred to in the decision as a variance, but was issued by the Town Board rather than a zoning board of appeals. The “variance” required that at such time as the child no longer resided in the house, the fence, deck and pool would have to be removed.  This provision referred to by the Court as the “Restoration Provision” would ultimately cost an amount estimated as exceeding $6,000.

     The Plaintiffs brought this action, which was dismissed on a motion on the complaint.  The Circuit Court upheld dismissal of one of the claims but reversed the dismissal on the question of whether the Restoration Provision violated the FHA. In its analysis the Court stated the following:
“The unlawful act, therefore, is the refusal to make a reasonable accommodation without regard to the state of mind underlying the refusal. Appellants do not challenge the accommodation made by the Town to the extent it allowed them, as they requested, to build a fence, install a pool, and add a deck to the pool. Their challenge is simply to the portion of the Town’s Resolutions requiring the removal of these modifications. The Town, in short, does not want the variance to ‘run with the land’ — to be taken advantage of by later occupants without a disability –while appellants want to avoid the cost of removal and to capture any increase in the value of the property caused by the modifications and/or by permanently freeing the lot in question from the restrictions applicable to the neighborhood in question….we believe that a trier of fact 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….The issue of whether the failure of the Town to allow the modifications to continue in place after the child left the property was reasonable therefore can neither be avoided nor decided as a matter of law on the pleadings.”
     The Court went on to note that in the land use context there are specific issues that must be considered:
“… 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.”
     Therefore, the portion of the District Court decision dismissing that claim was reversed.
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