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Subject: Reasonable Accommodation Pool - Anxiety
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JakeW1
(Florida)

Posts:36


06/16/2021 4:20 PM  
I am curious if anyone has thoughts on the below situation.

I have generalized anxiety disorder and can't be around large groups of people (public pools for example) without triggering anxiety, stress, and potential panic attacks. I have been seeing a primary care doctor and a psychiatrist for over a year and have a prescription. I have disclosed this information to my HOA and ACC group that approves/denies projects to my property.

Because of my condition, I am asking to install a pool in my lot, but I don't have the full real estate to do it directly behind my house. The covenant language says "pools must be constructed in the rear of the lot", and the ACC group has always interpreted this to mean 'not going beyond the rear plane of the home'. I have applied twice trying to make adjustments, even with my medical condition asking for a reasonable accommodation for an exception, to no avail they deny it every time - not even considering an accommodation to the their interpretation.

I am planning to consult with an attorney on the matter as I believe I am granted the right to ask for what comes down to roughly 20'feet of my pool going beyond the rear plane of the home. Without this accommodation, I can't enjoy a pool with my family and children, and the side rear yard that I do have has excess real estate for this. Public people are allowed to come with community members (up to 30 even) and enjoy amenities that I have to pay for but cannot enjoy myself.

Any advice or experience from anyone in this area? I feel like the ADA and FHA have legal ground I can stand on, but I am not an expert.
MichaelS56
(Minnesota)

Posts:300


06/16/2021 4:35 PM  
Make sure when talking with the attorney that he or she understands the legal ramifications of putting a pool on common property. All expenses would be on your shoulders for installation, repairs and would you have to take out the pool and put the grounds back the way it was if you decide to move out. I would assume the HOA would get their attorney involved to protect the Association from any liability etc.
JakeW1
(Florida)

Posts:36


06/16/2021 4:44 PM  
Hi Michael - I am in agreement that I would pay to have the pool, plus fencing and screen enclosure installed on my property that I own.

I believe I have read in other lawsuits that not every accommodation has to be 'returned to original state', though this may be another question for an attorney. Thank you for the response.
AugustinD


Posts:1920


06/16/2021 5:05 PM  
Posted By JakeW1 on 06/16/2021 4:20 PM
I am planning to consult with an attorney on the matter as I believe I am granted the right to ask for what comes down to roughly 20'feet of my pool going beyond the rear plane of the home.
Will this 20 feet of pool then be an encroachment on common area?

If so, then I agree with the board that this is not a reasonable accommodation for your disability.

You can try hiring an attorney but I do not like your chances of getting this 20 feet. Is there any other way?
JakeW1
(Florida)

Posts:36


06/16/2021 5:14 PM  
No, the 20 feet is still part of my yard, in fact the 20 feet doesn't even reach the middle of my left side of my house.

The ACC always rules that 'side pools' are not allowed in the community, they interpret the covenant language to require any pool to stay behind the 'rear plane' of the homes. I have a lot of yard left, it is not common area at all.

The covenants clearly state no 'above ground pools are allowed' only in ground pools. The language never says you cannot go beyond the rear plane, that is just how they always interpret it. That is where I have asked for the accommodation because of my condition. Allow me the extra 20 feet past my rear side of my home (still well within in my own lot).
BarbaraT1
(Texas)

Posts:589


06/16/2021 5:43 PM  
When you made the request, did you use the specific language “I am requesting sn accommodation under the Americans With Disabilities Act”? That should have triggered a closer look and frankly, an approval.

It’s on your property, there is nothing in the governing documents that would expressly prohibit it, and if you have a fence that would screen it from public view there is no reasonable excuse for denying it. But I’m not on your board so my opinion doesn’t mean much.
SheliaH
(Indiana)

Posts:4290


06/16/2021 5:44 PM  
Could you go with a smaller pool? I realize you want to enjoy it it with your family and I don't want to seem unsympathetic,but I have to wonder if you're looking for another reason to justify this pool. You don't say how large your family is, but how large does pool really need to be for you and your family to enjoy?

I'm not sure your having an anxiety disorder justifies a certain size pool - it doesn't seem to be something essential for your treatment, unlike someone who might need some sort of lap pool for physical therapy.



JakeW1
(Florida)

Posts:36


06/16/2021 5:54 PM  
Posted By BarbaraT1 on 06/16/2021 5:43 PM
When you made the request, did you use the specific language “I am requesting sn accommodation under the Americans With Disabilities Act”? That should have triggered a closer look and frankly, an approval.

It’s on your property, there is nothing in the governing documents that would expressly prohibit it, and if you have a fence that would screen it from public view there is no reasonable excuse for denying it. But I’m not on your board so my opinion doesn’t mean much.




Yes, I made it very clear that I am requesting a reasonable accommodation per the ADA/FHA. Originally they denied it in the meeting, they discussed a possible accommodation but never decided anything, then I had to come back today with a resubmission and they had clearly banded together and swiftly denied it again, even when I offered to bring it 7 feet further down into my yard by moving it 10 feet from my house as well (county rules to get closer to rear line).
JakeW1
(Florida)

Posts:36


06/16/2021 5:59 PM  
Posted By SheliaH on 06/16/2021 5:44 PM
Could you go with a smaller pool? I realize you want to enjoy it it with your family and I don't want to seem unsympathetic,but I have to wonder if you're looking for another reason to justify this pool. You don't say how large your family is, but how large does pool really need to be for you and your family to enjoy?

I'm not sure your having an anxiety disorder justifies a certain size pool - it doesn't seem to be something essential for your treatment, unlike someone who might need some sort of lap pool for physical therapy.







I don't think I am asking for a 'large' pool, its a standard 15 x 30. I assume we could go a bit smaller, I have a family of 5 (wife, me, 3 children). I don't know if there's a quantifiable size that fits 5 perfectly?

I haven't made the assumption that my disorder justifies the SIZE of the pool, only that I am requesting an accommodation to their normal 'interpretation' of the 'rear lot' covenant language. I do however think it is relevant that other people, public and private members in my community are able to enjoy the lavish sized amenity pools that I am paying for, I fail to see how my pool size request is being 'unreasonable' for example.

I don't think I follow "looking for another reason to justify this pool", I've been in the ER multiple times due to this condition and had panic attacks at local pools with the crowds. My condition is the reason I have asked for the accommodation entirely, otherwise I would never get it approved by way of how the ACC interprets the covenants.
JackJ9


Posts:0


06/16/2021 7:35 PM  
I don't think this meets reasonable accomodation and I wouldn't approve it. If it were in my association, you'd need to sue us and win in court in order to have it approved.
JakeW1
(Florida)

Posts:36


06/16/2021 7:46 PM  
Posted By JackJ9 on 06/16/2021 7:35 PM
I don't think this meets reasonable accomodation and I wouldn't approve it. If it were in my association, you'd need to sue us and win in court in order to have it approved.




Thanks for the response. May I ask why you feel that way? My understanding of the definition:

"When is a reasonable accommodation or modification necessary?

A requested accommodation or modification may be necessary when there is an identifiable relationship, or nexus, between the requested accommodation or modification and the individual’s disability."

I cannot use public pools due to my disability (under the ADA/FHA) and have asked for an accommodation to make a pool accessible in my yard privately.

You may be correct though, my POA is apparently forcing my hand to sue them if they don't respond at all.
MaxB4
(California)

Posts:1601


06/16/2021 7:57 PM  
Posted By JackJ9 on 06/16/2021 7:35 PM
I don't think this meets reasonable accomodation and I wouldn't approve it. If it were in my association, you'd need to sue us and win in court in order to have it approved.



Aren't you the charming type
JakeW1
(Florida)

Posts:36


06/16/2021 8:41 PM  
I came across I think some relevant material for what qualifies as a disability, further:

6. Should the corrective effects of medications be considered when deciding
if an impairment is so severe that it substantially limits a major life
activity?

No. The ADA legislative history unequivocally states that the extent to
which an impairment limits performance of a major life activity is
assessed without regard to mitigating measures, including medications.21
Thus, an individual who is taking medication for a mental impairment has
an ADA disability if there is evidence that the mental impairment, when
left untreated, substantially limits a major life activity.22 Relevant
evidence for EEOC investigators includes, for example, a description of
how an individual's condition changed when s/he went off medication23 or
needed to have dosages adjusted, or a description of his/her condition
before starting medication.

Without taking my prescription, I would not be able to function throughout the day, having several panic attacks prior to being on medication. I would think this applies to my claim for disability and request.
KellyM3
(North Carolina)

Posts:1806


06/16/2021 9:11 PM  
We're no lawyers on this forum but a "reasonable accommodation" under the ADA would not include installing a private pool much less accommodating your needs at the HOA private pool. As a private entity, HOAs sidestep ADA issues and a pool installation certainly wouldn't apply to any federal accessibility rules for the HOA pool in relation to your private request. At least, I can't see a linkage.

However, please check on Fair Housing rules and if they could legally cover your request to install a pool that isn't compliant with site placement. This is an interesting topic. I can understand the HOA board rejecting your request and can understand if you seek legal remedy.
JakeW1
(Florida)

Posts:36


06/16/2021 9:25 PM  
Posted By KellyM3 on 06/16/2021 9:11 PM
We're no lawyers on this forum but a "reasonable accommodation" under the ADA would not include installing a private pool much less accommodating your needs at the HOA private pool. As a private entity, HOAs sidestep ADA issues and a pool installation certainly wouldn't apply to any federal accessibility rules for the HOA pool in relation to your private request. At least, I can't see a linkage.

However, please check on Fair Housing rules and if they could legally cover your request to install a pool that isn't compliant with site placement. This is an interesting topic. I can understand the HOA board rejecting your request and can understand if you seek legal remedy.




I think this is probably true, although our HOA allows 'public access' to our amenities under certain circumstances which may flag them under the ADA as well as the Fair Housing Act also. I agree it's an interesting and tough topic in general, for me and I suppose those in charge of making the decisions.

I am burdened with showing evidence of my disability to a degree that it qualifies as a significant impairment (even if being medically treated). I guess the main thing my entire case hinges on is that I can't enjoy the same quality of life or enjoyment that other families are able to with the amenities (pool especially) because of my disability and that I am requesting the opportunity to have that same enjoyment on my own property.

I do appreciate the different perspectives this forum brings to the table.
MaxB4
(California)

Posts:1601


06/16/2021 9:31 PM  
Who's going to know if the pool is either in the back of the unit or on the side. If it is fenced and completely out of view of the common area I see no issue. In addition, what if these covenants are just boilerplate docs that the developer pulled and threw into his project.

I've had to read well over a 100 sets of CCRs and Bylaws when setting up accounts. You would be surprised at some of the crap that are in those documents than don't pertain to the community itself. They are one size fits all docs.
JakeW1
(Florida)

Posts:36


06/16/2021 9:36 PM  
Posted By MaxB4 on 06/16/2021 9:31 PM
Who's going to know if the pool is either in the back of the unit or on the side. If it is fenced and completely out of view of the common area I see no issue. In addition, what if these covenants are just boilerplate docs that the developer pulled and threw into his project.

I've had to read well over a 100 sets of CCRs and Bylaws when setting up accounts. You would be surprised at some of the crap that are in those documents than don't pertain to the community itself. They are one size fits all docs.




I wish you were on the ACC to make a vote

And yes, I've looked at the majority of the covenant documents for all of our communities and they are all the exact same verbiage, same conditions, word for word except for the community name itself basically.
AugustinD


Posts:1920


06/17/2021 2:16 AM  
JakeW1,

-- In my experience, you want to focus on a possible violation of the Fair Housing Act's "reasonable accommodation" requirements. The ADA may be relevant only to the extent that it defines disability.

-- Fair Housing complaints requesting reasonable accommodation for a disability by way of approving a pool (that would otherwise not be approved by the HOA) have at times been successful.

-- The part I cannot wrap my brain around is the size of the pool. If you were able to attend the HOA pool, about how many square feet of space would your family be able to enjoy?

-- I do not have the whole picture here when it comes to size. But so far, it seems like you are asking for more luxury than other residents get to enjoy.

-- You can google on {"pool" "fair housing" "reasonable accommodation" "HUD"} to see examples of when folks were successful in having a pool approved for disability.

-- The HOA has rejected your request. Your next step is either to lawyer up; file a Fair Housing complaint (very focused and very narrow); or both. You can google and a HUD site for filing a complaint will come up. But again, the part I do not like (or understand?) about your complaint is the justification (so far) for the size of the pool. If folks here are struggling with your meaning, HUD staff are going to be far less patient. Which argues for going straight to an attorney, despite the expense.
JohnT38
(South Carolina)

Posts:794


06/17/2021 3:45 AM  
Jake, if you were to comply and build the pool where they want it, what would the maximum size of the pool be that would fit in this area? I'm asking because they may argue that they are not violating any Fair Housing laws since they have not stopped you from building a pool. Now obviously if the maximum size is ridiculously small and not usable then that will help you. However, if you could build a pool in the approved area that was 1/2 the size of what you wanted then this may muddy your case. I hope you are able to work something out and good luck.
BarbaraT1
(Texas)

Posts:589


06/17/2021 5:10 AM  
People with disabilities should not have to settle for the bare minimum because people without disabilities think their problem isn’t bad enough to warrant any better.

A pool in this mans yard costs the association nothing in every meaning of the word. It doesn’t even require them to make an exception to any published rule or covenant. All the board would have to do is change an arbitrary guideline they have personally set. It’s disgusting that they refuse to do so, and that this forum is siding with them.

None of us get to decide what size pool is “good enough” for this man and his family. His kids are never going to be able to enjoy state fairs, theme parks, sporting events, parades etc with their dad. How petty to begrudge them the simple enjoyment of a family pool in the name of upholding a rule that this board invented, isn’t anywhere in the documents, and have no justification for other than “because we said so.”

This is why people hate HOAs.
CathyA3
(Ohio)

Posts:2599


06/17/2021 5:58 AM  
It seems like what the OP is asking for is a variance of the HOA's understanding of the phrase "beyond the rear plane of the home". This sounds like a visual/aesthetics thing - and with proper screening the change would be minimized. It doesn't sound like the OP is requesting installation of a pool in a community that doesn't allow private pools at all.

If I were on the board in that community, I would consider this a reasonable accommodation.

One interesting thing to think about - although it wouldn't change my decision - is what happens in ten years when the OP sells his home and the new owner has no need for such an accommodation. It wouldn't be fair to the new owner to expect him or her to correct something that is now a violation of community rules. On the other hand, it would mean that other homeowners have a good argument for requesting their own variances. In other words, the accommodation is actually forcing a change in community standards. Yes, I know all of the rationale behind grandfathering and suchlike... but the issue isn't black and white.
BarbaraT1
(Texas)

Posts:589


06/17/2021 6:22 AM  
Posted By CathyA3 on 06/17/2021 5:58 AM
It seems like what the OP is asking for is a variance of the HOA's understanding of the phrase "beyond the rear plane of the home". This sounds like a visual/aesthetics thing - and with proper screening the change would be minimized. It doesn't sound like the OP is requesting installation of a pool in a community that doesn't allow private pools at all.

If I were on the board in that community, I would consider this a reasonable accommodation.

One interesting thing to think about - although it wouldn't change my decision - is what happens in ten years when the OP sells his home and the new owner has no need for such an accommodation. It wouldn't be fair to the new owner to expect him or her to correct something that is now a violation of community rules. On the other hand, it would mean that other homeowners have a good argument for requesting their own variances. In other words, the accommodation is actually forcing a change in community standards. Yes, I know all of the rationale behind grandfathering and suchlike... but the issue isn't black and white.




From what the OP has posted, the documents just say “rear” and the board has interpreted that to mean “rear plane of the home”. So it’s not even a variance. If other owners want the same interpretation honestly so what? Sometimes community standards need to change. “No pickup trucks” is a common rule that was inserted into documents when pickup trucks were the symbol of blue collar workers, the ones NIMBY types wanted to keep out once the federal government said they couldn’t put “whites only” in the documents. Now a pickup truck is a $30,000 + everyday vehicle.

And this isn’t even a community standard - it’s just this boards personal preference.

No quantifiable reason has been provided for insisting that the pool be a certain size. The reason presented for following this “rule” is simply “because it’s the rule.” What is being protected by this “rule”? What risk is being mitigated? What nuisance is being prevented? Good rules serve a purpose. Bad ones exist solely to be enforced in the name of enforcement.

Associations should serve their members, not the other way around.
JakeW1
(Florida)

Posts:36


06/17/2021 6:28 AM  
Posted By JohnT38 on 06/17/2021 3:45 AM
Jake, if you were to comply and build the pool where they want it, what would the maximum size of the pool be that would fit in this area? I'm asking because they may argue that they are not violating any Fair Housing laws since they have not stopped you from building a pool. Now obviously if the maximum size is ridiculously small and not usable then that will help you. However, if you could build a pool in the approved area that was 1/2 the size of what you wanted then this may muddy your case. I hope you are able to work something out and good luck.




Great question. If I try to build a pool behind my home, I could maybe have a puddle of water for my foot? I don't have any real estate behind my home unfortunately that would work with setback requirements, even if those were waived to a significant degree I doubt I could fit even a hot tub (I live in Florida, it's way too hot for that!).

If I try to build a pool per their 'interpretation of the covenant language of pool behind rear plane of the home', pushing the pool long ways away from the home rather than up the side, based on requirements of concrete or pavers around the water and a screen due to bugs, it may be wide enough for us to get in line with each other along the way but I doubt anyone would call that a 'pool', and quite frankly that kind of option would probably decrease the value of my home as it would be seen as odd and non functional as a 'pool' for a regular family.

I believe having a disability allows people like myself the opportunity to ask for the same enjoyment that others are afforded, the only request I am looking for is 20 feet (or less potentially) going above the 'rear plane', that is for a standard average size pool in Florida 15 x 30, sure we could probably go with a smaller option and only need maybe 15 feet of above the rear plane. So far that hasn't really been an option to discuss with the HOA or ACC, it is just denied completely.

The rules don't even require that I put a 6 foot privacy fence in, but I want to do that, on top of screening it in. I guess we shall see how they proceed or force me to proceed.


JohnT38
(South Carolina)

Posts:794


06/17/2021 6:33 AM  
Posted By BarbaraT1 on 06/17/2021 5:10 AM
People with disabilities should not have to settle for the bare minimum because people without disabilities think their problem isn’t bad enough to warrant any better.

A pool in this mans yard costs the association nothing in every meaning of the word. It doesn’t even require them to make an exception to any published rule or covenant. All the board would have to do is change an arbitrary guideline they have personally set. It’s disgusting that they refuse to do so, and that this forum is siding with them.

None of us get to decide what size pool is “good enough” for this man and his family. His kids are never going to be able to enjoy state fairs, theme parks, sporting events, parades etc with their dad. How petty to begrudge them the simple enjoyment of a family pool in the name of upholding a rule that this board invented, isn’t anywhere in the documents, and have no justification for other than “because we said so.”

This is why people hate HOAs.




I agree. I raised the question because it helps him prepare for any argument that they may use.
JakeW1
(Florida)

Posts:36


06/17/2021 6:41 AM  
Posted By AugustinD on 06/17/2021 2:16 AM
JakeW1,

-- In my experience, you want to focus on a possible violation of the Fair Housing Act's "reasonable accommodation" requirements. The ADA may be relevant only to the extent that it defines disability.

-- Fair Housing complaints requesting reasonable accommodation for a disability by way of approving a pool (that would otherwise not be approved by the HOA) have at times been successful.

-- The part I cannot wrap my brain around is the size of the pool. If you were able to attend the HOA pool, about how many square feet of space would your family be able to enjoy?

-- I do not have the whole picture here when it comes to size. But so far, it seems like you are asking for more luxury than other residents get to enjoy.

-- You can google on {"pool" "fair housing" "reasonable accommodation" "HUD"} to see examples of when folks were successful in having a pool approved for disability.

-- The HOA has rejected your request. Your next step is either to lawyer up; file a Fair Housing complaint (very focused and very narrow); or both. You can google and a HUD site for filing a complaint will come up. But again, the part I do not like (or understand?) about your complaint is the justification (so far) for the size of the pool. If folks here are struggling with your meaning, HUD staff are going to be far less patient. Which argues for going straight to an attorney, despite the expense.




Thanks for your reply. "If you were able to attend the HOA pool, about how many square feet of space would your family be able to enjoy?" So you are asking if I did not have my disability, how much space could we enjoy? That is a variable question and depends on how many people are in the pool at the same time, if its a slow day there would be significant room for a family, more than I am requesting that is for sure, plus the slides and splash pads, and water toys and buckets that everyone has access to. I am not asking for more enjoyment than anyone without a disability is having.

"I do not have the whole picture here when it comes to size. But so far, it seems like you are asking for more luxury than other residents get to enjoy."
I think this is still a bit hard to decide. Due to how the ACC interprets the covenants, any corner lot can technically build a pool in their 'backyard' and it is completely exposed to everyone on the road (the entire pool and screen). My lot location is on a private cul-de-sac and would be hidden from 99% of anyone in our area. Other residents are already enjoying the amenities, or their own private pools that are exposed in nature to a significantly higher degree than my own would be, and I have a disability on top of that, so asking for a range of some exception of feet to pass the 'rear plane' seems reasonable to me, perhaps a court may have to rule on it.

I appreciate the advice and points you have raised. It is hard for folks to get a full picture on a forum board certainly. In my neighborhood, at least 75% of the homes here have pools at least the size or larger than what we have asked for originally, corner lots are allowed as I stated to build non private pools based on covenant interpretation, completely exposed to view. I raise that point because this ACC group is concerned about us having a screen visible and other members thinking they can submit for 'side pools' because of my application.

JakeW1
(Florida)

Posts:36


06/17/2021 6:43 AM  
Posted By BarbaraT1 on 06/17/2021 5:10 AM
People with disabilities should not have to settle for the bare minimum because people without disabilities think their problem isn’t bad enough to warrant any better.

A pool in this mans yard costs the association nothing in every meaning of the word. It doesn’t even require them to make an exception to any published rule or covenant. All the board would have to do is change an arbitrary guideline they have personally set. It’s disgusting that they refuse to do so, and that this forum is siding with them.

None of us get to decide what size pool is “good enough” for this man and his family. His kids are never going to be able to enjoy state fairs, theme parks, sporting events, parades etc with their dad. How petty to begrudge them the simple enjoyment of a family pool in the name of upholding a rule that this board invented, isn’t anywhere in the documents, and have no justification for other than “because we said so.”

This is why people hate HOAs.




Amen!!
JakeW1
(Florida)

Posts:36


06/17/2021 6:51 AM  
Posted By BarbaraT1 on 06/17/2021 6:22 AM
Posted By CathyA3 on 06/17/2021 5:58 AM
It seems like what the OP is asking for is a variance of the HOA's understanding of the phrase "beyond the rear plane of the home". This sounds like a visual/aesthetics thing - and with proper screening the change would be minimized. It doesn't sound like the OP is requesting installation of a pool in a community that doesn't allow private pools at all.

If I were on the board in that community, I would consider this a reasonable accommodation.

One interesting thing to think about - although it wouldn't change my decision - is what happens in ten years when the OP sells his home and the new owner has no need for such an accommodation. It wouldn't be fair to the new owner to expect him or her to correct something that is now a violation of community rules. On the other hand, it would mean that other homeowners have a good argument for requesting their own variances. In other words, the accommodation is actually forcing a change in community standards. Yes, I know all of the rationale behind grandfathering and suchlike... but the issue isn't black and white.




From what the OP has posted, the documents just say “rear” and the board has interpreted that to mean “rear plane of the home”. So it’s not even a variance. If other owners want the same interpretation honestly so what? Sometimes community standards need to change. “No pickup trucks” is a common rule that was inserted into documents when pickup trucks were the symbol of blue collar workers, the ones NIMBY types wanted to keep out once the federal government said they couldn’t put “whites only” in the documents. Now a pickup truck is a $30,000 + everyday vehicle.

And this isn’t even a community standard - it’s just this boards personal preference.

No quantifiable reason has been provided for insisting that the pool be a certain size. The reason presented for following this “rule” is simply “because it’s the rule.” What is being protected by this “rule”? What risk is being mitigated? What nuisance is being prevented? Good rules serve a purpose. Bad ones exist solely to be enforced in the name of enforcement.

Associations should serve their members, not the other way around.




Correct, the covenants say 'pools must be constructed in the rear of the lot', the ACC group only interprets that to mean 'behind the rear plane of the home'. There are no exceptions and they cite some section about 'general conformity to the community' aka 'this is how we have always done it so we will continue to do so'. This is what I have asked for an accommodation for, an exception based on my disability to go a portion above the rear plane of the home and I would even go further to put a 6 foot privacy fence to hide it (not required), and apparently they don't want me to screen it with an enclosure but I backup to acres of woods and already get eaten alive by mosquito's and chiggers daily so I really don't know how we would enjoy a pool in that location with no screen.
AugustinD


Posts:1920


06/17/2021 7:17 AM  
Posted By JakeW1 on 06/17/2021 6:41 AM
In my neighborhood, at least 75% of the homes here have pools at least the size or larger than what we have asked for originally,
In my experience reading fair housing case law, and assuming you mean "HOA" when you wrote "neighborhood," the above is important to include in a Fair Housing complaint to HUD. It supports the contention that you are seeking enjoyment of your home equal to others, via approval of a pool that is the same size as others' pools in the HOA but, because of your lot's configuration, requires an exception to the rules the ACC has adopted (sort of).

​corner lots are allowed as I stated to build non private pools based on covenant interpretation, completely exposed to view. I raise that point because this ACC group is concerned about us having a screen visible and other members thinking they can submit for 'side pools' because of my application.
I think the above is also important to include in an FHA complaint to HUD.

Due to how the ACC interprets the covenants, any corner lot can technically build a pool in their 'backyard' and it is completely exposed to everyone on the road (the entire pool and screen). My lot location is on a private cul-de-sac and would be hidden from 99% of anyone in our area. Other residents are already enjoying the amenities, or their own private pools that are exposed in nature to a significantly higher degree than my own would be,
This also should go into an FHA complaint to HUD.

In an FHA complaint seeking a reasonable accommodation for disability, I think you want to show that the accommodation is reasonable (or that the HOA is being unreasonable) because (1) the accommodation costs the HOA nothing, other than the review time of its ACC and maybe some small HOA attorney fees; (2) other HOA members have the item requested, hence rejection of your application denies you equal enjoyment of your lot/dwelling vis-a-vis non-disabled HOA members; and (3) the burden of having the item in a location somewhat different than (unpublished?) guidelines and possibly conforming with the covenants, depending on one's interpretation, is minuscule compared to your need to enjoy your home equally vis-a-vis non-disabled folks.

You could try submitting an FHA complaint at https://www.hud.gov/program_offices/fair_housing_equal_opp/online-complaint. Report back here if you want help with any of the questions on the forms (online or hard copy version). Keep the complaint as narrow and concise as possible. Several months may go be before HUD gets back to you with a live person to help you refine your complaint into a formal filing of a complaint.
JakeW1
(Florida)

Posts:36


06/17/2021 7:24 AM  
Posted By AugustinD on 06/17/2021 7:17 AM
Posted By JakeW1 on 06/17/2021 6:41 AM
In my neighborhood, at least 75% of the homes here have pools at least the size or larger than what we have asked for originally,
In my experience reading fair housing case law, and assuming you mean "HOA" when you wrote "neighborhood," the above is important to include in a Fair Housing complaint to HUD. It supports the contention that you are seeking enjoyment of your home equal to others, via approval of a pool that is the same size as others' pools in the HOA but, because of your lot's configuration, requires an exception to the rules the ACC has adopted (sort of).

​corner lots are allowed as I stated to build non private pools based on covenant interpretation, completely exposed to view. I raise that point because this ACC group is concerned about us having a screen visible and other members thinking they can submit for 'side pools' because of my application.
I think the above is also important to include in an FHA complaint to HUD.

Due to how the ACC interprets the covenants, any corner lot can technically build a pool in their 'backyard' and it is completely exposed to everyone on the road (the entire pool and screen). My lot location is on a private cul-de-sac and would be hidden from 99% of anyone in our area. Other residents are already enjoying the amenities, or their own private pools that are exposed in nature to a significantly higher degree than my own would be,
This also should go into an FHA complaint to HUD.

In an FHA complaint seeking a reasonable accommodation for disability, I think you want to show that the accommodation is reasonable (or that the HOA is being unreasonable) because (1) the accommodation costs the HOA nothing, other than the review time of its ACC and maybe some small HOA attorney fees; (2) other HOA members have the item requested, hence rejection of your application denies you equal enjoyment of your lot/dwelling vis-a-vis non-disabled HOA members; and (3) the burden of having the item in a location somewhat different than (unpublished?) guidelines and possibly conforming with the covenants, depending on one's interpretation, is minuscule compared to your need to enjoy your home equally vis-a-vis non-disabled folks.

You could try submitting an FHA complaint at https://www.hud.gov/program_offices/fair_housing_equal_opp/online-complaint. Report back here if you want help with any of the questions on the forms (online or hard copy version). Keep the complaint as narrow and concise as possible. Several months may go be before HUD gets back to you with a live person to help you refine your complaint into a formal filing of a complaint.




Thanks for the response. I did file a HUD complaint yesterday, I tried to keep it very clear, simple and concise. At this time, the ACC group won't even let me mention 'reasonable accommodation' in their meetings and say only the Board can discuss it. Yet I got an email today stating from the POA (management company) that the ACC has the say here and the Board will not discuss the matter with me. Umm, what? Haha. These folks are driving me crazy

Apparently I can't mention reasonable accommodation in the ACC meeting but the Board won't discuss it either, I am pretty sure they can't sweep it under a rug and treat me like any other individual.
AugustinD


Posts:1920


06/17/2021 8:08 AM  
Posted By JakeW1 on 06/17/2021 7:24 AM
I did file a HUD complaint yesterday, I tried to keep it very clear, simple and concise. At this time, the ACC group won't even let me mention 'reasonable accommodation' in their meetings and say only the Board can discuss it. Yet I got an email today stating from the POA (management company) that the ACC has the say here and the Board will not discuss the matter with me. Umm, what? Haha. These folks are driving me crazy

Apparently I can't mention reasonable accommodation in the ACC meeting but the Board won't discuss it either, I am pretty sure they can't sweep it under a rug and treat me like any other individual.
If you did not put these facts into our FHA complaint submission, then do put this in your notes to add to what will become the formal filing of an FHA complaint.

I consider the refusal by the HOA to let you bring up "reasonable accommodation" to be a (possibly very significant) mistake by the HOA.

I am not an attorney. I read a lot of Fair Housing case law; know the timeframe for one complaint where I am to achieve settlement; and am observing another complaint that I think is likely to go to settlement. Which takes a lot. HUD rejects outright far far more complaints than it either agrees to try to settle (via a kind of mediation) or pursue before a judge.
AugustinD


Posts:1920


06/17/2021 8:13 AM  
JakeW1, document all communications with the ACC and HOA in general. Stick them in a file or three-ring notebook or similar, organized by date. Do not delete emails. Leave them on your server. Print-outs of emails are not the gold standard for evidence. If you do not have your documentation of your disability together already, get it together now.
JakeW1
(Florida)

Posts:36


06/17/2021 8:31 AM  
Posted By AugustinD on 06/17/2021 8:08 AM
Posted By JakeW1 on 06/17/2021 7:24 AM
I did file a HUD complaint yesterday, I tried to keep it very clear, simple and concise. At this time, the ACC group won't even let me mention 'reasonable accommodation' in their meetings and say only the Board can discuss it. Yet I got an email today stating from the POA (management company) that the ACC has the say here and the Board will not discuss the matter with me. Umm, what? Haha. These folks are driving me crazy

Apparently I can't mention reasonable accommodation in the ACC meeting but the Board won't discuss it either, I am pretty sure they can't sweep it under a rug and treat me like any other individual.
If you did not put these facts into our FHA complaint submission, then do put this in your notes to add to what will become the formal filing of an FHA complaint.

I consider the refusal by the HOA to let you bring up "reasonable accommodation" to be a (possibly very significant) mistake by the HOA.

I am not an attorney. I read a lot of Fair Housing case law; know the timeframe for one complaint where I am to achieve settlement; and am observing another complaint that I think is likely to go to settlement. Which takes a lot. HUD rejects outright far far more complaints than it either agrees to try to settle (via a kind of mediation) or pursue before a judge.




They let me discuss the fact of the accommodation in the last ACC meeting (2-3 weeks ago), since then they have obviously met without me and discussed a strategy. Yesterday, in that ACC meeting they acted as if they were not aware of my accommodation and any attempt to mention it they looked at a presiding board member and said "We cannot discuss that, only the Board can". Then proceeded to deny my project again. Then as I mentioned in a previous reply here, the POA (management company middle people) emailed and said the Board won't even be discussing anything with me, that the ACC is where this will be decided. Very conflicting information and direction to me as the homeowner and person with disability.

I keep all records, absolutely.
CathyA3
(Ohio)

Posts:2599


06/17/2021 8:44 AM  
Things like this show why our attorneys recommended that the minute we get a whiff of Fair Housing or ADA in a homeowner's request, we should turn things over to the attorney for the necessary verification of the disability and recommended accommodation.

It's easy for a board to get things wrong and the penalties can be stiff.
BillH10
(Texas)

Posts:783


06/17/2021 9:03 AM  
To me, this Board cannot see the forest for the trees. I am in Barbara's camp on this one: the HOA should serve the owners.

Based on what has been posted, granting a variance should be a simple administrative act since apparently nothing else is affected. Even if it were, it would only take the creation of rules regarding fences, screening, or what have you.

Let us say Jake prevails and is able to install the pool as he proposes. What happens when neighbor Ramesh, three blocks over, situated on a lot similarly configured, desires to install a pool. Is Ramesh denied because, unlike Jake, he does not have an underlying physical issue? Fair? I think not.

This situation is a superb opportunity for this Board to seize the moment, do some creative thinking, and devise a set of rules/guidelines for lots with this configuration. Doing so will eliminate all of the existing and future overhead regarding variances, issues regarding subsequent owners, and everything else which is related.
JakeW1
(Florida)

Posts:36


06/17/2021 9:11 AM  
Posted By CathyA3 on 06/17/2021 8:44 AM
Things like this show why our attorneys recommended that the minute we get a whiff of Fair Housing or ADA in a homeowner's request, we should turn things over to the attorney for the necessary verification of the disability and recommended accommodation.

It's easy for a board to get things wrong and the penalties can be stiff.




What is interesting is the POA management company did inform the POA attorney about my disclosure and ask for an accommodation, her response was "Let the ACC group handle it and decide", which I find really bizarre, it makes me think she did not think my condition would hold up in court potentially, but I have done extensive research and am confident I would qualify for a disability even under the 'significant or major level' based on all the unfortunate events I've gone through with this condition over the last 2 years, which are all able to be verified and testified upon if requested. I provided them enough information to prove I have the condition still and have since 2019.

I think they threw this project into the ACC group, they mishandled it in the first meeting, they re-met as an ACC group and Board team and discussed a strategy, now I am being pigeon-holed without consideration on an accommodation at least at this point, unless they change course which it does not sound like they plan to. Seems like they are inviting me to sue them.
AugustinD


Posts:1920


06/17/2021 9:19 AM  
Posted By BillH10 on 06/17/2021 9:03 AM

Based on what has been posted, granting a variance should be a simple administrative act since apparently nothing else is affected.
I would call it a "reasonable accommodation," not a "variance." The words might help others wanting approval for a pool on a lot like JakeW1's lot understand why they are being denied.
Let us say Jake prevails and is able to install the pool as he proposes. What happens when neighbor Ramesh, three blocks over, situated on a lot similarly configured, desires to install a pool. Is Ramesh denied because, unlike Jake, he does not have an underlying physical issue? Fair? I think not.
Pardon? The reason Ramesh is denied is because he is able to use public pools. With JakeW1's approved pool (on account of reasonable accommodation), both JakeW1 and Ramesh have access to a pool, unhindered by disability. This is "fair" in the eyes of many.

If your main point is that the ACC guidelines need work, and this dispute could be the impetus for improving the guidelines, then I understand your point.
AugustinD


Posts:1920


06/17/2021 9:21 AM  
Posted By JakeW1 on 06/17/2021 9:11 AM
What is interesting is the POA management company did inform the POA attorney about my disclosure and ask for an accommodation, her response was "Let the ACC group handle it and decide", which I find really bizarre,
Assuming all you have posted is true, then I would call the HOA attorney's response, "inept." It happens.
JakeW1
(Florida)

Posts:36


06/17/2021 9:22 AM  
Posted By AugustinD on 06/17/2021 9:19 AM
Posted By BillH10 on 06/17/2021 9:03 AM

Based on what has been posted, granting a variance should be a simple administrative act since apparently nothing else is affected.
I would call it a "reasonable accommodation," not a "variance." The words might help others wanting approval for a pool on a lot like JakeW1's lot understand why they are being denied.
Let us say Jake prevails and is able to install the pool as he proposes. What happens when neighbor Ramesh, three blocks over, situated on a lot similarly configured, desires to install a pool. Is Ramesh denied because, unlike Jake, he does not have an underlying physical issue? Fair? I think not.
Pardon? The reason Ramesh is denied is because he is able to use public pools. With JakeW1's approved pool (on account of reasonable accommodation), both JakeW1 and Ramesh have access to a pool, unhindered by disability. This is "fair" in the eyes of many.

If your main point is that the ACC guidelines need work, and this dispute could be the impetus for improving the guidelines, then I understand your point.




Yeah.. I struggle to see how it is not fair when Ramesh doesn't suffer from a disability and can enjoy all of the pool amenities unhindered. If he has a documented medical disability that precludes him as do I, I would expect he could fight for the same outcome (if I am successful that is).
JakeW1
(Florida)

Posts:36


06/17/2021 9:25 AM  
Posted By AugustinD on 06/17/2021 9:21 AM
Posted By JakeW1 on 06/17/2021 9:11 AM
What is interesting is the POA management company did inform the POA attorney about my disclosure and ask for an accommodation, her response was "Let the ACC group handle it and decide", which I find really bizarre,
Assuming all you have posted is true, then I would call the HOA attorney's response, "inept." It happens.




Everything I have posted has occurred. I agree the response was offsetting to me, the tone makes me think she doesn't think this is a serious concern and could easily defend their approach in court. The more I research about FHA and HUD Case law and matters, the more inclined I am to believe that I have good legal ground to stand on because of my actual disability with proof.

Still yet, I am seeking legal advice from a few firms in town to get their opinions.
AugustinD


Posts:1920


06/17/2021 9:54 AM  
Posted By JakeW1 on 06/17/2021 9:25 AM
Still yet, I am seeking legal advice from a few firms in town to get their opinions.
I would appreciate an update on whether you can even find a firm who is available to take your case. Nationwide, and even if one's case has merit, it's difficult to find a law firm for a HOA/COA dispute that either (1) does not have a conflict of interest; or (2) is free to undertake a case and even just write a letter.

Which leaves one pursuing a complaint with the under-budgeted and very busy HUD staff, who I think are stuck not addressing many cases that have merit so that HUD still has the resources to go after the worst offenders.

More and more I think the choice has to be moving. Not because a HOA/COA is right. But because it costs too much money, time and emotion to fight even a board that is clearly in the wrong on a major issue.
JakeW1
(Florida)

Posts:36


06/17/2021 9:59 AM  
Posted By AugustinD on 06/17/2021 9:54 AM
Posted By JakeW1 on 06/17/2021 9:25 AM
Still yet, I am seeking legal advice from a few firms in town to get their opinions.
I would appreciate an update on whether you can even find a firm who is available to take your case. Nationwide, and even if one's case has merit, it's difficult to find a law firm for a HOA/COA dispute that either (1) does not have a conflict of interest; or (2) is free to undertake a case and even just write a letter.

Which leaves one pursuing a complaint with the under-budgeted and very busy HUD staff, who I think are stuck not addressing many cases that have merit so that HUD still has the resources to go after the worst offenders.

More and more I think the choice has to be moving. Not because a HOA/COA is right. But because it costs too much money, time and emotion to fight even a board that is clearly in the wrong on a major issue.




I've called about 5 firms so far. Two of them have setup consultations based on the evidence thus far, still I need to see if they will accept the case and move forward. My city is very large and there are probably 50+ firms to go through. I am hopeful I can find at least one that has availability and credibility for the case. We shall see, I am on the hunt and motivated to see this through.

Moving is really bad in this area, prices are through the roof, even if I get great value for my home, finding a home with a pool will be even more expensive, and we've updated a lot in this home. I think I am left to finding an attorney for now at least.
MaxB4
(California)

Posts:1601


06/17/2021 10:04 AM  
Posted By AugustinD on 06/17/2021 2:16 AM
JakeW1,

-- In my experience, you want to focus on a possible violation of the Fair Housing Act's "reasonable accommodation" requirements. The ADA may be relevant only to the extent that it defines disability.

-- Fair Housing complaints requesting reasonable accommodation for a disability by way of approving a pool (that would otherwise not be approved by the HOA) have at times been successful.

-- The part I cannot wrap my brain around is the size of the pool. If you were able to attend the HOA pool, about how many square feet of space would your family be able to enjoy?

-- I do not have the whole picture here when it comes to size. But so far, it seems like you are asking for more luxury than other residents get to enjoy.

-- You can google on {"pool" "fair housing" "reasonable accommodation" "HUD"} to see examples of when folks were successful in having a pool approved for disability.

-- The HOA has rejected your request. Your next step is either to lawyer up; file a Fair Housing complaint (very focused and very narrow); or both. You can google and a HUD site for filing a complaint will come up. But again, the part I do not like (or understand?) about your complaint is the justification (so far) for the size of the pool. If folks here are struggling with your meaning, HUD staff are going to be far less patient. Which argues for going straight to an attorney, despite the expense.



If you Google standard pool size, 15x30 will come up. I have two homes, both with the same size "standard" pool.
JakeW1
(Florida)

Posts:36


06/17/2021 2:18 PM  
Interestingly, had a phone call with some attorneys. Different ways of going about the process. We did locate a home within throwing distance almost that actually has a pool directly on the side of their home, hard to see from google because of trees but its there. Have to wonder why this ACC group is now denying any and all pools that don't fit their 'new interpretation'.

I was recently told this morning from the POA its possible they would let us appeal and submit the pool without a screen enclosure (apparently like this other home). Problem is that home doesn't back up into a preserve of acres and miles of heavy woodlands with animals, snakes, insects and bugs..

Now I am thinking the reasonable accommodation here is in fact just having the pool enclosed...considering new evidence that a neighboring home has a SIDE POOL.. and I've disclosed my disability.

Crazy stuff, these HOA's.
AugustinD


Posts:1920


06/17/2021 3:03 PM  
Posted By CathyA3 on 06/17/2021 5:58 AM
One interesting thing to think about - although it wouldn't change my decision - is what happens in ten years when the OP sells his home and the new owner has no need for such an accommodation. It wouldn't be fair to the new owner to expect him or her to correct something that is now a violation of community rules. On the other hand, it would mean that other homeowners have a good argument for requesting their own variances. In other words, the accommodation is actually forcing a change in community standards. Yes, I know all of the rationale behind grandfathering and suchlike... but the issue isn't black and white.
I agree CathyA3's points above are important.
JakeW1
(Florida)

Posts:36


06/17/2021 5:10 PM  
Posted By AugustinD on 06/17/2021 3:03 PM
Posted By CathyA3 on 06/17/2021 5:58 AM
One interesting thing to think about - although it wouldn't change my decision - is what happens in ten years when the OP sells his home and the new owner has no need for such an accommodation. It wouldn't be fair to the new owner to expect him or her to correct something that is now a violation of community rules. On the other hand, it would mean that other homeowners have a good argument for requesting their own variances. In other words, the accommodation is actually forcing a change in community standards. Yes, I know all of the rationale behind grandfathering and suchlike... but the issue isn't black and white.
I agree CathyA3's points above are important.




How does this apply now that I have discovered a home across the street from me has a side pool (clearly not in line with the 'covenant interpretation') and they are denying my pool requests even with 'reasonable accommodation' requests. It seems crazy to me.
AugustinD


Posts:1920


06/17/2021 5:18 PM  
Posted By JakeW1 on 06/17/2021 5:10 PM

How does this apply now that I have discovered a home across the street from me has a side pool (clearly not in line with the 'covenant interpretation') and they are denying my pool requests even with 'reasonable accommodation' requests. It seems crazy to me.
Without knowing why the home across the street had its pool approved, one can only speculate.

The list of concerns are what competent boards have to consider in the long run.

I do not consider covenants "crazy." Covenants are a contract binding all the members and the HOA corporation. The analysis you are getting from the long-time posters here have an eye on the contract.

I do consider many ACCs and HOA boards to be not so good at understanding how to apply covenants.

Respectfully, you perhaps think this is black-and-white. The problem is the HOA has a right to take a position in a court of law, and the HOA attorney may make this far less than black-and-white, possibly just as a strategy to wear you down.
JakeW1
(Florida)

Posts:36


06/17/2021 5:49 PM  
Posted By AugustinD on 06/17/2021 5:18 PM
Posted By JakeW1 on 06/17/2021 5:10 PM

How does this apply now that I have discovered a home across the street from me has a side pool (clearly not in line with the 'covenant interpretation') and they are denying my pool requests even with 'reasonable accommodation' requests. It seems crazy to me.
Without knowing why the home across the street had its pool approved, one can only speculate.

The list of concerns are what competent boards have to consider in the long run.

I do not consider covenants "crazy." Covenants are a contract binding all the members and the HOA corporation. The analysis you are getting from the long-time posters here have an eye on the contract.

I do consider many ACCs and HOA boards to be not so good at understanding how to apply covenants.

Respectfully, you perhaps think this is black-and-white. The problem is the HOA has a right to take a position in a court of law, and the HOA attorney may make this far less than black-and-white, possibly just as a strategy to wear you down.




This is far from black and white. I am being forced to sue or wait for FHA / HUD respond to my complaint and help file through them, meanwhile our ACC is denying applications that apparently have been approved in the past, with or without accommodation I don't know, I do know that I have supplied sufficient evidence for my own reasonable accommodation and it's being ignored.

The same covenants that I am under are the exact ones that my neighbors house is under and they have a pool up near the midway of their house, meanwhile I am requesting half of that for my own pool project and providing a disability reason on top of it. Seems like selective enforcement on the surface.
KerryL1
(California)

Posts:8729


06/17/2021 5:54 PM  
Say, Jake, you've noted a couple of time that even though you're paying for it, you cannot use the HOA pool with all of its bells & whistles. But, presumably your wife & kids use it and would continue to due to the fun stuff it has. So...your household isn't being deprived of that amenity. With so many owners having their own pool in your assn. aren't there times of the day or evening when there are few or no others in the assn. pool? That's the case in ours.

I don't think, then, that you should try to make the point that your household cannot use the assn. pool.

I wonder if you assn. is proceeding properly in your case, Jake. My understanding is that in FL the Board rarely can meet in closed session and when it does the assn. attorney must be present. I may have that all wrong. (I miss Geno!)
JakeW1
(Florida)

Posts:36


06/17/2021 5:59 PM  
Posted By KerryL1 on 06/17/2021 5:54 PM
Say, Jake, you've noted a couple of time that even though you're paying for it, you cannot use the HOA pool with all of its bells & whistles. But, presumably your wife & kids use it and would continue to due to the fun stuff it has. So...your household isn't being deprived of that amenity. With so many owners having their own pool in your assn. aren't there times of the day or evening when there are few or no others in the assn. pool? That's the case in ours.

I don't think, then, that you should try to make the point that your household cannot use the assn. pool.

I wonder if you assn. is proceeding properly in your case, Jake. My understanding is that in FL the Board rarely can meet in closed session and when it does the assn. attorney must be present. I may have that all wrong. (I miss Geno!)




So I should just let my family go to the pool and not fight for my own pool in my own lot that has space for it, where others have done so? I didn't file or say my family can't use the pool, I said I can't personally. Seems like a really horrible solution to force me to stay home while my wife and children go off by themselves, that really promotes a good family dynamic? I work hard during the day, I would love to enjoy family pool time without having to worry about anxiety and panic attacks in public.

I am pretty sure that is a great reason for reasonable accommodations in general.
JackJ9


Posts:0


06/17/2021 6:14 PM  
The OP is confounding some things:

Being part of the association doesn't guarantee the OP the right to a pool, or the right to using a pool. The pool is there as a benefit of the association for his use if he chooses to use it. I am sure other homeowners have disabilities that mean they cannot use the pool. For example, they may have a phobia of water, they may be elderly, disabled, or other reasons. There is no requirement to allow someone to add a pool to his house because they cannot use the pool.

For the OP, a reasonable accommodation may be to create specific hours where the number of people who can use the pool is limited, say to 5 people or less. (Let's ignore enforcement and practicalites there. I'm just saying that would be an example of an accomodation.) But that is not what the OP is asking for. He is asking for a waiver that will allow him to put a pool in a location on his property that is not approved for a pool. That's not an REASONABLE accomodation. It's a major accomodation and giving him special privilege's that are not extended to everyone.

To make matters worse, the OP is asking not only for a pool, but also screening to screen in the pool because he feels there are bugs that will prevent him from using the pool. Bugs can travel a long ways, and I am sure if there are bugs at his house, there are bugs at the pool. He doesn't have a bug phobia, but believes that he is being denied accomodation if he cannot get multiple waivers from the policies of the association. That is not a REASONABLE accomodation. It is an UNREASONABLE accomodation.

I think the OP needs to let the issue go.
MaxB4
(California)

Posts:1601


06/17/2021 6:24 PM  
Posted By JackJ9 on 06/17/2021 6:14 PM
The OP is confounding some things:

Being part of the association doesn't guarantee the OP the right to a pool, or the right to using a pool. The pool is there as a benefit of the association for his use if he chooses to use it. I am sure other homeowners have disabilities that mean they cannot use the pool. For example, they may have a phobia of water, they may be elderly, disabled, or other reasons. There is no requirement to allow someone to add a pool to his house because they cannot use the pool.

For the OP, a reasonable accommodation may be to create specific hours where the number of people who can use the pool is limited, say to 5 people or less. (Let's ignore enforcement and practicalites there. I'm just saying that would be an example of an accomodation.) But that is not what the OP is asking for. He is asking for a waiver that will allow him to put a pool in a location on his property that is not approved for a pool. That's not an REASONABLE accomodation. It's a major accomodation and giving him special privilege's that are not extended to everyone.

To make matters worse, the OP is asking not only for a pool, but also screening to screen in the pool because he feels there are bugs that will prevent him from using the pool. Bugs can travel a long ways, and I am sure if there are bugs at his house, there are bugs at the pool. He doesn't have a bug phobia, but believes that he is being denied accomodation if he cannot get multiple waivers from the policies of the association. That is not a REASONABLE accomodation. It is an UNREASONABLE accomodation.

I think the OP needs to let the issue go.



I am wondering Jack, if others in the community have pools on their private lot, why, in your infinite wisdom, do you feel the OP is not entitled to the same rights? Exactly what would the reason be for the person who drafted these CCRs to only allow a pool in a specific area on ONE's property?

The following link will help you with your spelling errors: https://help.zolasuite.com/portal/en/kb/articles/how-do-i-enable-spell-check-for-google-chrome
KerryL1
(California)

Posts:8729


06/17/2021 6:34 PM  
My, my, Jake. I'm sorry I didn't say this clearly. That your family members can all use the assn. pool is true. That you cannot be with them while they can enjoy the pool and its amenities doesn't mean they can't have fun in it. I, personally don't think an entire family has to be together for all recreation. Some apart time actually is pretty healthy for family dynamics. Are you saying your wife/kids do not use the assn. pool because you can't be with them?

And I certainly didn't say that you should be denied an accommodation for a pool in your yard.

And I have to agree with Jack that amenities are provided to households. I sure don't use some of the equipment in my gym that I pay for, or the billiards table, or the pool. My spouse uses the pool though.

AugustinD


Posts:1920


06/17/2021 6:58 PM  
Posted By JackJ9 on 06/17/2021 6:14 PM
He is asking for a waiver that will allow him to put a pool in a location on his property that is not approved for a pool. That's not an REASONABLE accomodation.
HUD's definition of "reasonable accommodation":

"A "reasonable accommodation" is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling. The Act makes it unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling."
See https://www.justice.gov/crt/us-department-housing-and-urban-development


It's a major accomodation and giving him special privilege's that are not extended to everyone.
I think just about every housing provider's "reasonable accommodation" of a disabled person is 'a special privilege that is not extended to everyone.'

Nationwide, HUD has been forcing housing providers, with rules and covenants prohibiting dogs, to allow service dogs to certain disabled people. Do you understand why HUD rejects such housing providers' reasoning that "having a dog in such communities is a special privilege"? Think.
AugustinD


Posts:1920


06/17/2021 7:10 PM  
Posted By JakeW1 on 06/17/2021 5:49 PM
I am being forced to sue or wait for FHA / HUD respond to my complaint and help file through them, meanwhile our ACC is denying applications that apparently have been approved in the past, with or without accommodation I don't know, I do know that I have supplied sufficient evidence for my own reasonable accommodation and it's being ignored.
-- Suing and waiting on HUD are not the only options. There's moving; researching putting in a different size pool; ignoring the HOA and installing the pool anyway; and maybe more.

-- I understand that you are disgusted that the HOA will not do what you think is obvious. Clearly the HOA does not think that approval should be automatic. Maybe the HOA ACC and board are being irrational. Maybe not.

The same covenants that I am under are the exact ones that my neighbors house is under and they have a pool up near the midway of their house, meanwhile I am requesting half of that for my own pool project and providing a disability reason on top of it. Seems like selective enforcement on the surface.
It may very well be selective enforcement that ultimately, will cause the HOA to cave or a judge to rule in your favor.

I personally am not entirely comfortable with judging the situation here, because I do not have in front of me what the ACC and Board have in front of them.
MaxB4
(California)

Posts:1601


06/17/2021 7:49 PM  
Posted By KerryL1 on 06/17/2021 6:34 PM
M

And I have to agree with Jack that amenities are provided to households.




Are you implying that since amenities are provided that owners shouldn't be able to duplicate what the HOA already provides? In my only community I owned one of the three pools that owners built in the neighborhood.
BarbaraT1
(Texas)

Posts:589


06/18/2021 2:56 AM  
Posted By KerryL1 on 06/17/2021 5:54 PM
Say, Jake, you've noted a couple of time that even though you're paying for it, you cannot use the HOA pool with all of its bells & whistles. But, presumably your wife & kids use it and would continue to due to the fun stuff it has. So...your household isn't being deprived of that amenity. With so many owners having their own pool in your assn. aren't there times of the day or evening when there are few or no others in the assn. pool? That's the case in ours.

I don't think, then, that you should try to make the point that your household cannot use the assn. pool.

I wonder if you assn. is proceeding properly in your case, Jake. My understanding is that in FL the Board rarely can meet in closed session and when it does the assn. attorney must be present. I may have that all wrong. (I miss Geno!)




They cannot use the pool in the way that families that do not have a disabled member can use the pool.

Again, people with disabilities should not have to accept “less than” because people without disabilities don’t think their situation is that big a deal. You may not think it’s a big deal if this persons family can’t enjoy recreation with him, but frankly why is it your call? I assure you, his family probably spends lots of time apart as a result of the OPs anxiety.

Again - what is being preserved or protected by insisting that an arbitrary, undocumented preference of the ACC be rigorously adhered to?

What is preventing the OP from installing his pool is not a covenant or a rule, it’s the whim of the people who happen to be serving on the ACC at the moment.

Let’s suppose the OP was in a wheelchair, and his ACC request was to install a ramp on his back deck so he could be in his backyard with his kids. And the ACC said no because they just don’t like the idea? Would you argue that he could just stay inside, that he doesn’t need to access his own backyard? It should be enough for him to be able to see his kids play at a distance and no ones entitled to play catch with dad?

I mean maybe you might!

Again - this is why people hate HOAs. An arbitrary decision made by people who seem to have let a little power go to their heads.
CathyA3
(Ohio)

Posts:2599


06/18/2021 5:00 AM  
Posted By BarbaraT1 on 06/18/2021 2:56 AM
... snip ...

Again - this is why people hate HOAs. An arbitrary decision made by people who seem to have let a little power go to their heads.



This does happen. But boards trying their best to get this right also can get it wrong because the issues aren't easy.

Using this example:

The law says HOAs must provide reasonable accommodations for those with documented need for such. We all agree.

The law does not require that the HOA provide the accommodation that the owner wants - it only requires *an* accommodation that will meet the requester's needs. There is room for judgement here and for getting it wrong.

In cases like this one, it's unlikely that a private pool will be equivalent to the HOA's pool - due to individual lot size and set back limitations, and due to the fact that many HOAs pools are sized to handle use by an entire community and not by a single homeowner with or without family. A private pool probably won't have many of the niceties that go along with a community pool either, nor should anyone expect it to. Offsetting that is the fact that the private owner won't have to share with whoever shows up in a bathing suit. But the two experiences will not be the same, and portraying this as "less than" vs. "more than" is attempting to put an emotional or moral spin on something that is neither.

Finally, a board has to balance legal requirements with the needs of the community as a whole. If they prioritize the needs of a single owner - and that's what an accommodation means, like it or not - there is always a chance that someone else will get the short end of the stick. One reason to limit what kind of private pool is acceptable is to balance the benefit provided to the pool's owner with the rights of the immediate neighbors who may be exposed to the noise and other downsides of that pool. In some ways it's a zero sum game, and no law that magically make that not be true. It's not easy, and it gives even the most competent and diligent of boards another chance to get it wrong, at least in someone's eyes.

And never mind what happens several years down the road when the need for the accommodation no longer exists (ie, the owner has sold his home) - but the accommodation itself is still there and is used as rationale by other owners to get the same thing to force a change in community standards without the approval of the homeowners as a whole.

The issue may seem black and white to the person requesting an accommodation, and the existence of laws requiring such a thing reinforces this idea that it really is black and white. But to a board that needs to provide for the needs of an entire community *and* who should be considering the long-term effects of their decisions, this stuff provides plenty of opportunity to mess up (and of course get excoriated by all parties, including those on the sidelines).
BarbaraT1
(Texas)

Posts:589


06/18/2021 5:16 AM  
Posted By CathyA3 on 06/18/2021 5:00 AM
Posted By BarbaraT1 on 06/18/2021 2:56 AM
... snip ...

Again - this is why people hate HOAs. An arbitrary decision made by people who seem to have let a little power go to their heads.



This does happen. But boards trying their best to get this right also can get it wrong because the issues aren't easy.

Using this example:

The law says HOAs must provide reasonable accommodations for those with documented need for such. We all agree.

The law does not require that the HOA provide the accommodation that the owner wants - it only requires *an* accommodation that will meet the requester's needs. There is room for judgement here and for getting it wrong.

In cases like this one, it's unlikely that a private pool will be equivalent to the HOA's pool - due to individual lot size and set back limitations, and due to the fact that many HOAs pools are sized to handle use by an entire community and not by a single homeowner with or without family. A private pool probably won't have many of the niceties that go along with a community pool either, nor should anyone expect it to. Offsetting that is the fact that the private owner won't have to share with whoever shows up in a bathing suit. But the two experiences will not be the same, and portraying this as "less than" vs. "more than" is attempting to put an emotional or moral spin on something that is neither.

Finally, a board has to balance legal requirements with the needs of the community as a whole. If they prioritize the needs of a single owner - and that's what an accommodation means, like it or not - there is always a chance that someone else will get the short end of the stick. One reason to limit what kind of private pool is acceptable is to balance the benefit provided to the pool's owner with the rights of the immediate neighbors who may be exposed to the noise and other downsides of that pool. In some ways it's a zero sum game, and no law that magically make that not be true. It's not easy, and it gives even the most competent and diligent of boards another chance to get it wrong, at least in someone's eyes.

And never mind what happens several years down the road when the need for the accommodation no longer exists (ie, the owner has sold his home) - but the accommodation itself is still there and is used as rationale by other owners to get the same thing to force a change in community standards without the approval of the homeowners as a whole.

The issue may seem black and white to the person requesting an accommodation, and the existence of laws requiring such a thing reinforces this idea that it really is black and white. But to a board that needs to provide for the needs of an entire community *and* who should be considering the long-term effects of their decisions, this stuff provides plenty of opportunity to mess up (and of course get excoriated by all parties, including those on the sidelines).




What needs of the community are being served by prohibiting this pool?

The long term affects are what? That a pool exists that some people didn’t like?

An HOA does not exist to ensure that no member ever has to gaze upon, or be aware of the existence of, something they personally don’t like.

Again - the pool location restriction is not in the covenants. It is not in any published architectural guidelines. It is solely the personal feelings of the current ACC members.

If they all dropped dead tomorrow and a whole new ACC were appointed, and they said sure put the pool where you want, would we still be pearl clutching over the needs of the community and the long term ramifications?

Let’s look at the long term ramifications of letting the ACC operate on their personal whims. One year sheds are fine, the next year the ACC is full of members who don’t like sheds so they aren’t allowed. One year trees are not required. Next year the ACC loves trees, no request to remove a tree will be approved.


JakeW1
(Florida)

Posts:36


06/18/2021 5:51 AM  
Posted By BarbaraT1 on 06/18/2021 5:16 AM
Posted By CathyA3 on 06/18/2021 5:00 AM
Posted By BarbaraT1 on 06/18/2021 2:56 AM
... snip ...

Again - this is why people hate HOAs. An arbitrary decision made by people who seem to have let a little power go to their heads.



This does happen. But boards trying their best to get this right also can get it wrong because the issues aren't easy.

Using this example:

The law says HOAs must provide reasonable accommodations for those with documented need for such. We all agree.

The law does not require that the HOA provide the accommodation that the owner wants - it only requires *an* accommodation that will meet the requester's needs. There is room for judgement here and for getting it wrong.

In cases like this one, it's unlikely that a private pool will be equivalent to the HOA's pool - due to individual lot size and set back limitations, and due to the fact that many HOAs pools are sized to handle use by an entire community and not by a single homeowner with or without family. A private pool probably won't have many of the niceties that go along with a community pool either, nor should anyone expect it to. Offsetting that is the fact that the private owner won't have to share with whoever shows up in a bathing suit. But the two experiences will not be the same, and portraying this as "less than" vs. "more than" is attempting to put an emotional or moral spin on something that is neither.

Finally, a board has to balance legal requirements with the needs of the community as a whole. If they prioritize the needs of a single owner - and that's what an accommodation means, like it or not - there is always a chance that someone else will get the short end of the stick. One reason to limit what kind of private pool is acceptable is to balance the benefit provided to the pool's owner with the rights of the immediate neighbors who may be exposed to the noise and other downsides of that pool. In some ways it's a zero sum game, and no law that magically make that not be true. It's not easy, and it gives even the most competent and diligent of boards another chance to get it wrong, at least in someone's eyes.

And never mind what happens several years down the road when the need for the accommodation no longer exists (ie, the owner has sold his home) - but the accommodation itself is still there and is used as rationale by other owners to get the same thing to force a change in community standards without the approval of the homeowners as a whole.

The issue may seem black and white to the person requesting an accommodation, and the existence of laws requiring such a thing reinforces this idea that it really is black and white. But to a board that needs to provide for the needs of an entire community *and* who should be considering the long-term effects of their decisions, this stuff provides plenty of opportunity to mess up (and of course get excoriated by all parties, including those on the sidelines).




What needs of the community are being served by prohibiting this pool?

The long term affects are what? That a pool exists that some people didn’t like?

An HOA does not exist to ensure that no member ever has to gaze upon, or be aware of the existence of, something they personally don’t like.

Again - the pool location restriction is not in the covenants. It is not in any published architectural guidelines. It is solely the personal feelings of the current ACC members.

If they all dropped dead tomorrow and a whole new ACC were appointed, and they said sure put the pool where you want, would we still be pearl clutching over the needs of the community and the long term ramifications?

Let’s look at the long term ramifications of letting the ACC operate on their personal whims. One year sheds are fine, the next year the ACC is full of members who don’t like sheds so they aren’t allowed. One year trees are not required. Next year the ACC loves trees, no request to remove a tree will be approved.






Basically this is correct. I have found a home in my community with a side pool and no real privacy fence (no screen enclosure either), literally a stone throw away, but they probably got it approved years before this ACC group was on the committee. Now the ACC is quoting a general section in governing documents that say they can amend to, take away, or add to, any of the guidelines as they wish essentially. How this is allowed by law, I am not sure, because it seems to dance around or provide a loophole to 'selective enforcement'.

I plan to resubmit my project and remove the screen enclosure to see if it gets approved in that state, as I was told the ACC group met after denying me and 'were willing to approve it' if I did not screen it.

I suppose I will have to see if that holds true.


AugustinD


Posts:1920


06/18/2021 8:03 AM  
First the forum has this:
Posted By JakeW1 on 06/16/2021 4:20 PM
The covenant language says "pools must be constructed in the rear of the lot", and the ACC group has always interpreted this to mean 'not going beyond the rear plane of the home'.
Second the forum has this:
Posted By JakeW1 on 06/16/2021 5:14 PM
The ACC always rules that 'side pools' are not allowed in the community, they interpret the covenant language to require any pool to stay behind the 'rear plane' of the homes.
Above, the first alleged interpretation by the ACC does not make sense to me. The second alleged interpretation does.

Third the forum has this:
Posted By JakeW1 on 06/17/2021 6:41 AM
this ACC group is concerned about us having a screen visible and other members thinking they can submit for 'side pools' because of my application.
Fourth the forum has this:
Posted By JakeW1 on 06/17/2021 6:51 AM
the covenants say 'pools must be constructed in the rear of the lot', the ACC group only interprets that to mean 'behind the rear plane of the home'. There are no exceptions and they cite some section about 'general conformity to the community' aka 'this is how we have always done it so we will continue to do so'.
It appears the OP has so far located exactly one home with a side pool. Here's one of his statements to this effect:
Posted By JakeW1 on 06/18/2021 5:51 AM
I have found a home in my community with a side pool and no real privacy fence (no screen enclosure either), literally a stone throw away, but they probably got it approved years before this ACC group was on the committee.
AugustinD observations:

-- The covenant allows only pools in the rear of the lot. The ACC has said this means side pools are not allowed. This ACC interpretation of the covenants makes sense. The first post by the OP seems to have a post-o pertainining to the ACC's interpretation. This post-o (as I call it) left me puzzling for quite awhile.

-- The ACC has said it is seeking, among other things, conformity in the appearance of the HOA. I think the courts generally support this as a valid criterion, especially if the governing documents (including the HOA's master plan) talk about conformity.

-- The OP seeks a pool whose area, looking down at the lot, covers a great deal of the area on the side of the house. The proposed pool extends forward of the rear plane of the building (building meaning house), in violation of the covenants.

-- I gather the 30 x 15 foot pool the OP wants either will not fit into the rear of the OP's lot, or the fit is cumbersome especially taking into account other requirements for pool design. I think this point needs clarification before the OP talks to the two law firms.

-- The reasonable accommodations the OP wants is to put the pool largely on the side of the house and to have screens around the pool set a certain way.

-- Is selective enforcement going on when one other home has a side pool, approved or not approved, long ago? I think the ACC denying the OP's (largely) side pool, all while one other lot may be in violation of the prohibition on side pools, is probably not a type of selective enforcement that the OP can use with success in his battle.

-- If I were on the ACC, I would need more persuasion about why a pool cannot go in the rear of this lot. Diagrams would be key.

-- I do advise the OP to use diagrams in the meeting with the attorneys. I think he should try to present his position and the ACC's position more like I have presented it above. Why? Because the attorneys need the facts here to decide how they will advise the OP.

-- I think slogging through the presentation above has led to a lot of misunderstandings. At this writing, I think the OP's version of the "facts" is kind of slanted in his favor. If the attorneys have to spend time figuring out what may be slanted and what is not slanted, this is that much more money out of the OP's pocket.

1.5 cents
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