Fed. Dist. Court in NY Holds Requirement to Remove a Pool did not Violate the FHA

Plaintiffs Colleen and John Austin commenced this action for declaratory and injunctive relief against defendant Town of Farmington alleging discrimination in granting a variance which permits the installation of an above-ground pool with protective fencing on the basis of their son’s disability which they claim contains the onerous requirement that the pool along with the protective fence are required to be removed upon the sale of their home or when their disabled son is no longer in residence. They claimed this requirement of removal violated the reasonable modifications requirement to be made under these circumstances as provided by the Federal Fair Housing Act (“FHA”), Title VIII of the Civil Rights Act of 1968.

To succeed in showing a violation of § 3604, the plaintiffs needed to establish disparate treatment, that their son’s disability was, in some part, the basis for defendant’s action in requiring them to restore the property, or that defendant’s action produced a differential impact or effect on disabled individuals. Here, Plaintiffs failed to support, beyond their conclusory assertions, that requiring them to bear the cost of the removal of the fence and pool was based on their son’s disability when the initial grant of a variance to build the pool along with a fence was granted knowing that plaintiffs’ son was disabled. Because the complaint alleges neither an intent to discriminate, nor facts sufficient to constitute disparate-impact discrimination under the FHA, the court granted the defendant’s motion to dismiss the claim.

Austin v Town of Farmington, 2015 WL 3604671 (WDNY 6/8/2015)

The decision can be accessed at: http://www.newyorklawjournal.com/id=1202729028264