Appellate Court Upholds Code Enforcement Against Homeowners
An Appellate Court recently upheld a municipal code enforcement action against homeowners in City of Altamont v. Fritcher.
The City issued an abatement notice to homeowners after the
homeowners extended their backyard privacy fence and encroached onto a City
public utility easement. The homeowners appealed, requesting that the City allow them to keep the extended fence in place as a reasonable accommodation to protect their
disabled child. An alternative reasonable accommodation was offered by the City
but was rejected by the homeowners. The City then brought an ordinance violation
action against the homeowners. The circuit court ruled in favor of the
City, finding that the City did not selectively enforce the
ordinance against the homeowners, and the City had offered a reasonable accommodation to the homeowners.
On appeal, the Appellate Court upheld the circuit court’s
ruling in favor of the City.
First, the Appellate Court determined the landowner’s
selective prosecution claim failed as the homeowners presented no evidence of
discrimination in the City’s enforcement of its ordinances. The Court
emphasized that the City had an independent and rational basis for its decision
to prosecute the homeowners’ code violation as the homeowners “intentionally
constructed a fence in violation of an ordinance and intentionally failed to
obtain the required permit . . . after being given notice.”
Next, the Appellate Court upheld the dismissal of
the homeowners’ reasonable accommodation claim. The Court noted that the
Americans with Disabilities Act (ADA) and Fair Housing Amendments Act (FHAA)
requires municipalities to offer a reasonable accommodation to disabled
individuals for rules and policies which harm disabled individuals because of
their disability. Because the City’s ordinance restricted use of privately
owned land by all citizens, and not just disabled individuals, the Court held the homeowners
were not entitled to a reasonable accommodation. Furthermore, the Court also
found that the homeowners were not entitled to a reasonable accommodation
because of their failure to provide the City with a meaningful opportunity to
assess the requested accommodation before construction of the fence occurred. Finally,
the Court noted individuals are not entitled to municipal code waivers when the
requested waiver amounts to a fundamental and unreasonable change of the code.
Post Authored by Tyler Smith & Julie Tappendorf
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