How To Handle Special Parking Requests

This month, we are going to focus on how to handle parking requests as reasonable accommodations for residents with disabilities. The Fair Housing Act (FHA) requires communities to make exceptions to rules, policies, practices, or services as a reasonable accommodation to afford a resident with a disability an opportunity to use and enjoy his dwelling that is equal to the opportunity afforded to those who are not disabled. Management's obligation to provide a reasonable accommodation extends to rental applicants who request the accommodation during the application process and to occupants who may live in the unit but who are not necessarily signing the lease.

Nationally, fair housing complaints based on disability discrimination are on the rise, and a substantial number are based on disputes over requests for an exception to parking rules as a reasonable accommodation for an applicant or resident with a disability—or someone in his household.

Example: In recent months, HUD filed discrimination charges in two separate cases based on allegations that a housing community failed to provide parking accommodations to disabled residents. One case was against a public housing authority in New York, where parking was available on a first-come, first-served basis. According to the charge, the resident parked in handicapped-accessible spaces near his building, but there were no marked access aisles adjacent to any of the spaces. He complained of difficulty getting in and out of his vehicle because other vehicles were parked too close, but the manager allegedly said that access lanes weren't required and suggested he back into the space as an alternative. Claiming that the resident was forced to park on a public road, the charge sought damages for emotional distress and civil penalties against the community [Jones v. Niagara Falls Housing Authority, September 2008].

The other case was filed against a condominium association in Puerto Rico, which allegedly refused to allow a disabled couple to exchange their two assigned parking spaces for two handicapped-accessible spaces close to their unit [Garcia-Guillen v. Astralis Condominium Association, September 2008].

Many parking disputes stem from community concerns about allocating a limited resource, particularly where parking is at a premium. In addition, economic conditions may make communities reluctant to undertake additional administrative or financial costs associated with reserving a particular space in an unassigned lot, or altering the location, size, or features of a space in a lot with assigned parking. And, as with making any exception to community rules, communities may worry that granting a parking request for one resident may trigger a flood of requests from other residents who want special parking privileges.

With the aging of the baby boomers, communities are likely to face increased demand for disability-related parking accommodations, notes fair housing expert Anne Sadovsky. That makes it all the more important to understand just what the law does—and does not require—your community to do when faced with a request for an exception to your community's parking rules by a resident with a disability.

In this month's issue, we'll give you five rules so you'll know how to handle parking-related requests for reasonable accommodations under fair housing law. Then, you can take the Coach's Quiz to see how much you have learned.

COACH'S TIP: Housing communities built since the early 1990s must have a certain number of handicapped-accessible parking spaces to comply with the FHA's design and construction standards. The standards apply to all newly constructed multifamily dwellings of four or more units intended for first occupancy after March 13, 1991. In those communities, the Fair Housing Design Manual requires that a minimum of 2 percent of the parking spaces serving covered dwelling units must be made accessible, and they must be located on an accessible route.

On top of those requirements, communities may have to provide additional accessible parking spaces if needed as a reasonable accommodation to a person with a disability, says Atlanta-based fair housing attorney Robin Hein. Fair housing rules governing parking-related requests as a reasonable accommodation for disabled residents apply to all communities, regardless of when they were built, he says.

For more detailed information on the FHA's design and construction standards, see the March 2008 issue of Fair Housing Coach, “Ensuring Compliance with FHA's Design and Construction Requirements.”

WHAT DOES THE LAW SAY?

The FHA bans housing discrimination based on the disability of an applicant or resident—or the disability of members of a household or anyone associated with them. Among the prohibited practices under the FHA is refusal to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling unit, including public and common-use areas. The rationale is that a community's rules may have a different effect on individuals with disabilities, so treating people with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy the community, according to HUD.

For example, a community that offers parking on a first-come, first-served basis must grant the request for a reserved parking space to a mobility-impaired resident who has trouble walking more than a short distance and does not have access to a handicap parking space near his unit, according to HUD. The accommodation is necessary to afford him an equal opportunity to use and enjoy a dwelling, and it is reasonable because it is feasible and practical under the circumstances.

Communities sometimes get into trouble in handling parking-related accommodation requests from residents who don't have obvious mobility impairments. The fact that a resident doesn't use a wheelchair or appear to have difficulty walking doesn't mean that he is not entitled to a parking accommodation.

Example: A Wisconsin resident with multiple sclerosis was entitled to a parking-related accommodation request even though he did not appear to have any mobility problems, according to a federal court ruling. The resident, whose condition varied with remissions, said he did everything he could not to appear disabled because he felt he was treated with less respect and credibility when others saw him as disabled. Nevertheless, he requested a large space reserved for him near the building entrance because of a bladder-control problem and difficulty in walking and getting in and out of his car. There were handicapped-accessible spaces available on a first-come, first-served basis, but he said they were usually taken by other residents. The court ruled that the community, which knew he had MS, had to grant his parking accommodation request. It was irrelevant that he didn't “appear” to be disabled: The existence of a disability did not depend on his appearance, but on his physical condition [Jankowski Lee and Associates v. Cisneros, Wisconsin 1996].

Nevertheless, HUD says that the FHA does not require a community to make an exception to parking rules unless there is an identifiable relationship between the requested accommodation and the individual's disability. And the requested parking accommodation must be more than a mere convenience; it must be necessary to allow the resident to live in and fully enjoy the community.

COACH'S TIP: Communities sometimes question whether a disability-related request for a parking space is considered a reasonable accommodation or a reasonable modification under the FHA. According to HUD, courts have treated requests for a parking space as requests for a reasonable accommodation and have placed the responsibility for providing the parking space on the community, even if it results in some cost to the community. The cost for making an accommodation is usually the owner's responsibility, not the resident's. If the request involves substantial structural changes, such as building a ramp to a parking area, you should get legal guidance to determine whether it should be considered a request for a reasonable modification under the FHA. Most of the rules for handling reasonable accommodations and reasonable modifications are similar, but there's one big difference: In general, the community must pay the costs associated with a reasonable accommodation, while the resident is responsible for costs associated with a reasonable modification.

5 RULES FOR COMPLYING WITH FAIR HOUSING LAW WHEN HANDLING SPECIAL PARKING REQUESTS

Rule #1: Establish Policies and Procedures for Parking Accommodation Requests

Though it's not required under the FHA, fair housing experts recommend adopting formal policies and procedures for handling reasonable accommodation requests. HUD says that a formal process may help communities minimize misunderstandings about the nature of the request and, in the event of a later dispute, provide documentation that the requests received proper consideration.

Depending on the particular needs of a community, it may not be necessary to adopt a policy specifically related to parking. Hein recommends that communities adopt a general reasonable accommodation policy that refers to parking and other frequently requested accommodations by persons with disabilities. The policy may describe the community's commitment to comply with fair housing law by allowing a modification to rules, policies, practices, or services that is necessary to afford a person with a disability an equal opportunity to use and enjoy the community. In addition, it may describe the procedures for filing requests and the steps the community may take to evaluate them. The community may decide how formal or how detailed the policy should be, Hein says.

Nevertheless, the FHA does not require that a request be made in a particular manner or at a particular time, so you must consider an accommodation request even if the resident makes the request orally or does not use your preferred forms or procedures for making such requests.

Train your staff to be polite to residents or applicants who make accommodation requests, says fair housing trainer Carl York, vice president of Sentinel Real Estate Corp. He recommends training staff members to ask the resident to fill out a form or submit a written request for the parking accommodation, but not to insist that they do so.

COACH'S TIP: Adopt procedures to ensure your community responds to parking accommodation requests in a timely manner. Under HUD guidelines, an undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation.

Rule #2: Don't Ask for Too Much Information

Make sure your procedures governing parking accommodation requests, including any forms used, do not violate fair housing rules governing disability-related inquiries. The FHA generally prohibits communities from asking whether an applicant or resident (or anyone associated with him) has a disability or asking about the nature or severity of his disabilities. If an applicant or resident requests a reasonable accommodation, however, the law allows communities to request a reasonable amount of information about the disability in some instances.

In general, the community is entitled to information that is necessary to evaluate if the parking accommodation may be necessary because of a disability. That means that you may not ask for further information if the disability is obvious or otherwise known to you, and if the need for the requested parking accommodation is also readily apparent or known. That would be the case, for example, if an applicant with an obvious mobility impairment asks you to assign her a parking space near the entrance to the building instead of a space located in another part of the parking lot. The physical disability and the disability-related need for the parking request are both readily apparent, so you may not require her to provide any additional information about her disability or the need for the parking space.

On the other hand, you may ask for additional information if either the disability or the need for the requested parking accommodation is not obvious. If the disability is not obvious, the HUD guidelines permit a community to request reliable information to verify that the person's condition meets the FHA's definition of “disability.” Depending on the circumstances, the guidelines state that such information may come from the individual himself, a medical professional, a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual's disability.

If the resident or applicant is considered disabled under the FHA, then you may request only the information that is necessary to evaluate if the parking accommodation is needed because of a disability. Such information must be kept confidential and may not be shared with others unless they need the information to evaluate the requested accommodation request.

Rule #3: Grant Reasonable Requests for Disability-Related Parking Accommodations

When there is a clear relationship between the resident's disability and the need for the requested parking accommodation, the law requires the community to grant the request—unless it would impose an undue financial and administrative burden on the community or fundamentally alter the nature of the community's operations.

In general, communities should grant a parking accommodation request from a resident or applicant with a mobility problem, according to Hein. Common parking-related accommodation requests include a designated parking space near a building entrance or a resident's unit, a handicapped-accessible parking space, or a space designed for van parking. York agrees, noting that you should grant a request for a parking space as a reasonable accommodation as long as the space is not attached to a different unit or reserved for someone else.

To prevent others from using the space, Sadovsky recommends putting up a sign or otherwise marking the space as reserved. For safety reasons, York says it's important not to use the resident's name or unit number on the sign. Sadovsky recommends giving the resident a permit and reserving the space for that permit number. Hein says that the community may keep a log book to keep track of the permits.

In communities where there is assigned parking, the law generally does not require a community to take away a spot assigned to another resident and give it to a disabled resident. However, it may have to allow a disabled resident to exchange an assigned parking space for a handicapped-accessible space normally reserved for visitors in the general parking area as long as the community still has the minimum number of unreserved handicap spaces required under FHA accessibility guidelines.

Example: This past summer, an administrative law judge approved a $17,000 settlement to resolve allegations that a Puerto Rico condominium association refused to assign a resident a parking space necessary to accommodate her son's disability. According to the complaint, the resident's 6-year-old son had cerebral palsy; he used a wheelchair, was unable to speak, and had limited ability to control his body movements. Allegedly, the 140-unit community had nine visitor spaces close to her unit, four of which were designated as handicapped accessible and were vacant most of the time. The complaint claimed that the community denied the resident's request to use one of the accessible spaces reserved for visitors, and she rejected alternative accommodations offered by the community because they would have required her to leave her son unattended [Calderon-Grau v. Parques De Las Flores Condominium Association, August 2008].

Even if there is a disability-related need for the requested parking accommodation, the community does not have to grant the request if providing the accommodation is unreasonable. The law considers a requested accommodation to be unreasonable when it would impose an undue financial and administrative burden on the community or fundamentally alter the nature of the community's operations. It does not permit a community to deny a request merely because granting the accommodation would be inconvenient for the community. However, it is the community's responsibility to prove that there is an unreasonable administrative or financial burden.

For example, a community may worry that granting a disabled resident's request for a reserved parking space near an entrance may generate similar requests from other disabled residents, particularly when parking is limited. At least one court has rejected that argument, ruling that the FHA required an individualized inquiry into whether the community's parking policies affected the disabled resident differently from other disabled residents. Even if most disabled residents were satisfied with the parking services provided, the FHA required the court to determine whether the parking arrangement interfered with this resident's use and enjoyment of her dwelling [Southern California Housing Rights Center v. Loz Feliz Towers Homeowners Association, May 2005].

In most cases, a community may not deny a resident's disability-related request for a reserved or handicapped-accessible space because it involves some cost to the community, according to HUD guidelines. As long as it wouldn't impose an undue financial burden, a community would have to pay the costs related to creating signage, repainting markings, redistributing spaces, or creating curb cuts.

If the requested parking accommodation requires more costly expenditures, then the request may be considered an undue financial and administrative burden, depending on factors such as:

• The cost of the requested accommodation;

• The financial resources of the community;

• The benefits that the accommodation would provide to the resident; and

• The availability of other, less expensive alternative accommodations that would effectively meet the resident's disability-related needs.

Rule #4: Offer Alternatives When Requested Accommodation Is Unreasonable

You don't have to grant an unreasonable parking accommodation request, but that doesn't mean that you should simply deny any accommodation. The key to avoiding fair housing trouble is to offer a reasonable alternative that would allow the resident the opportunity to live in and fully enjoy the community, according to Hein. If the resident rejects your alternative accommodation and files a fair housing complaint, then the courts, HUD, and state and local enforcement agencies will look at what you offered to determine whether it was reasonable.

Example: A New Jersey community successfully defended a fair housing complaint filed on behalf of a disabled resident for denial of a parking accommodation. The resident, who had a mobility disorder, accused the community of discrimination in assigning him a handicapped-accessible space that was at a greater distance from the entrance to his building than the handicapped-accessible space he wanted. The court ruled that the community provided a reasonable accommodation necessary to afford the resident an equal opportunity to enjoy his dwelling. There was a limited number of handicap parking spaces, and the community acted in a fair and rational way by allocating them to the disabled residents based on seniority [United States v. Port Liberte Condo I Association, Inc., September 2006].

When a requested accommodation is unreasonable, HUD says that the community should engage in an “interactive process” to discuss possible alternatives. If an alternative would effectively meet the requester's disability-related needs and is reasonable, then the community must provide it.

Rule #5: Do Not Impose Fees for Granting Parking Accommodation Requests

The law prohibits communities from requiring residents with disabilities to pay extra fees as a condition of receiving a reasonable accommodation. For example, if a community generally does not charge residents for parking, then the community may not impose an extra fee upon a resident who requires a handicapped-accessible space or other disability-related parking accommodation.

However, if your community normally requires all residents to pay a parking fee, you should consult your attorney when an individual with a disability asks you to waive the fee as a reasonable accommodation. Under some circumstances, you could find yourself in fair housing trouble for failing to waive financial burdens—including generally applicable fees—as a reasonable accommodation for a resident with a disability.

Example: A California mobile home community was sued for violating the FHA by refusing to waive a guest parking fee as an accommodation for a resident whose daughter required the services of a home health aide. The court acknowledged that some generally applicable fees could have the effect of excluding disabled residents depending upon certain factors, such as the relationship between the amount of the fees and the overall housing costs, the proportion of other residents paying such fees, the importance of the fees to the community's overall revenues, and the importance of the fee waiver to the disabled resident. In this case, however, the court ruled that the resident did not prove the parking policy prevented the aide from being able to provide care services or that it diminished the care that the resident could receive [United States v. California Mobile Home Park Management Co., February 1997].

Fair Housing Act: 42 USC §3601 et seq.

HUD guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf

Coach Sources

Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood and Williams, P.A., 2970 Claremont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.

Anne Sadovsky, CSP: Dallas, TX; (866) 905-9300; anne@annesadovsky.com.

Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.