In Fox Bay Civic Assn v Cresswell, an unpublished Michigan Court of Appeals opinion, the defendant purchased a home in a subdivision and fenced her yard without seeking permission from the homeowner’s association. The restrictions required prior board approval before the erection of a fence “except as required by state or township requirements for swimming pool safety.” The association requested that she remove it and install an invisible fence or a dog run. It also advised her that she would be allowed to retain the fence if she obtained written approval from all of her neighbors, which she failed to obtain. The association filed suit to compel removal of the fence. The homeowner defended on the basis that she was disabled and the association violated the Fair Housing Act (overview here) and Michigan’s Persons with Disabilities Civil Rights Acts (PDF) by failing to allow the fence as a reasonable accommodation. The court granted an injunction by summary disposition to the association and the homeowner appealed.
Parties asserting a claim under these acts must demonstrate that a requested modification or accommodation is both reasonable and necessary to their equal enjoyment of housing of their choice. In determining whether a proposed accommodation is reasonable, the court must consider the benefits of the proposed accommodation against the extent that the legitimate purposes and effects of a regulation are undermined by the request. A disabled individual is not entitled to the accommodation of his or her choice, but to a reasonable accommodation.
In determining whether a proposed modification is reasonable, the court must weigh the burden the modification imposes against the benefits it provides to a protected individual. Again, a disabled person is entitled to a reasonable modification, not necessarily the one her or she requests.
Regarding her accommodation request, the court held that her request that the association simply overlook her violation of the restrictions was neither reasonable nor necessary. Approving her actions after the fact and without consent of her neighbors undermines the restriction and threatens the benefits the other members derive from the restriction.
Regarding her modification request, the court held that she did not establish that there were no reasonable alternatives to her fence, or that the fence was necessary to provide her equal enjoyment of her property. The association had offered the alternative of an invisible fence; while the defendant argued that her dogs would be subject to attack by animals running loose in the subdivision, the court pointed out that such risk was shared by all members and not unique to her disability. The association also offered a dog run, and defendant did not adequately explain why a dog run would not be sufficient. Because she did not establish that no other modification other than her fence was both reasonable and necessary, the court found that the association had not violated the statutes.