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