For community associations in Virginia, requests for accessible parking to accommodate a disability come in many forms. Requests range from requesting a designated parking spot for people with disabilities, to a parking spot closer to one’s residence, to sidewalk cuts, reconfiguring and/or rearranging a parking spot. These requests involve a change in a rule or policy of the association and/or a physical change or alteration of ownership. Whether a request is for a rule or policy, on the one hand, or a physical change, on the other, is noteworthy because it impacts who is responsible for the costs. For accessible parking requests, this was the requesting party for a rule or policy change (i.e. reasonable accommodation) Where the association if it is a physical change (i.e. a reasonable modification).
Effective July 1, 2021, the distinction between an accessible parking request is an accommodation request or a change request has been eliminated. Instead, the Virginia Fair Housing Law (“VFHL”) has been amended to provide that all requests for accessible parking to accommodate a disability will be treated as a request for reasonable accommodation, even if it includes physical modification. This is important because Virginia Community Associations will now be financially responsible for all costs associated with accessible parking requests.
As community associations are well aware, the VFHL[1] makes it illegal for associations to refuse to make reasonable accommodations and modifications for people with disabilities that may be necessary to provide such people with an equal opportunity to use and enjoy accommodation. The VFHL, as recently amended, provides a good opportunity to review some important considerations for processing accessible parking requests.
Who qualifies as having a disability
Fair housing laws define a person with a disability as including people:
(a) with a physical or mental impairment that substantially limits one or more of that person’s major life activities;
(b) with a record of having such impairment; Where
(c) deemed to have such an impairment.[2]
A “physical or mental impairment” can include any of the following:
(i) any disorder or physiological condition, cosmetic disfigurement or anatomical loss affecting one or more of the following bodily systems: neurological; musculoskeletal; special sensory organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; or endocrine; Where
(ii) any mental or psychological disorder, such as intellectual or developmental disability, organic brain syndrome, emotional or mental illness or specific learning disability.
“Physical or mental impairment” includes diseases and conditions such as orthopedic, visual, speech and hearing impairments; cerebral palsy; autism; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; Diabetes; human immunodeficiency virus infection; intellectual and developmental disabilities; emotional illness; substance abuse other than addiction caused by current illegal use of a controlled substance; and alcoholism.[3]
The term “substantially limit” “suggests that the limitation is ‘significant’ or ‘to a large extent'”.[4] The term “major life activities” includes taking care of oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.[5]
Fair housing laws provide legal protections to a person with a disability who resides or intends to reside in housing, as well as anyone associated with a person with a disability.[6] Given the long list of conditions, illnesses and disorders that are considered disabilities, it is not surprising that some disabilities are observable while others are not apparent. This confuses community associations and requires careful consideration in deciding how to process a request for reasonably accessible parking.
Information Community Associations Can Look For
Community associations are required to promptly review and consider a person’s request for accessible parking. A community association is notified of a request when a person with a disability, a family member or someone acting on their behalf requests accessible parking to accommodate a disability. A request may be verbal or written, and failure to respond to an accessible parking space in a timely manner may be considered a denial of the request. There is no magic language or required form that must be used if the claim can reasonably be inferred.
There is no one-size-fits-all approach to reviewing such requests. Each request involves specific facts and circumstances and should be determined on a case-by-case basis. Community associations are, however, permitted to obtain certain information to determine if an accessible parking request is necessary due to a disability. The type and extent of information a community association may request depends in part on whether the applicant’s disability and/or disability-related need for an accessible parking request is known or readily apparent. In general, the types of inquiries a community association may make to determine if the request for accessible parking is reasonable and necessary include:
- Has the person requested accessible parking due to a disability? In other words, is the request due to a physical or mental impairment?
- Does the person have an observable disability or does the community association already have such information that they have reason to know that the person has a disability?
- If the disability is not obvious or known, has the person requesting the accessible parking provided information that reasonably supports that the person requesting the accommodation has a disability? Please note that community associations are not permitted to ask questions about the nature or extent of a person’s disability or learn about the person’s diagnosis.
- If the disability is not obvious and the need for the accessible parking request is also not obvious or known, has the person requesting the accommodation provided information that reasonably supports that the accommodation of accessible parking is needed in relation to the individual’s disability? This survey focuses on the link between disability and the need for accessible parking spaces.[7]
As for the documentation that supports a request for accessible parking, it may come from a medical professional or other third party who has a professional or therapeutic relationship with the person with a disability involving the provision of disability-related services. Because each request for an accessible parking facility is unique, the type of information and documentation a community association may request depends on the circumstances. Community associations should consult their legal counsel to determine what information and documents may be sought.
When can an accessible parking request be refused?
A request for accessible parking for a person with a disability may be refused in certain circumstances. Before doing so, community associations should consult legal counsel. Refusing an accommodation request for accessible parking should not be taken lightly and could result in a complaint. A community association may deny a request for accessible parking only if (a) the request was not made by or on behalf of a person with a disability, (b) there is no disability-related need for the accommodation, or (c) the request is unreasonable because it would create an undue financial and administrative burden on the community association or would fundamentally change the nature of the community association’s business[8]. Finally, before denying a request for accessible parking, a community association may be required to engage in an “interactive process” where the association and the applicant have further discussions related to the parking request. Again, community associations should consult their legal counsel before refusing any request.
Additional Thoughts
In addition to the above considerations, community associations in Virginia should review, adjust, and/or plan budgets to include the potential cost of providing accessible parking spaces. Community associations should also consider adopting a Fair Housing Reasonable Housing Development and Modification Policy that will not only address requests for accessible parking, but also any other development or modification requests the association may receive. (e.g. service animals, installing ramps, etc.). Such a policy provides consistency and structure for the assessment of requests and may also include an accommodation/amendment form that requesters complete and submit.
[1] In addition to the VFHL, the federal Fair Housing Amendments Act of 1988 (“FHA”) also prohibits discriminatory housing practices, to which community associations in Virginia are also subject. Reference in this article to “fair housing laws” includes the VFHL as well as the FHA.
[2] See 24 CFR § 100.201; Virginia Code § 36-96.1:1.
[3] Identifier.
[4] See Joint statement from the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations under the Fair Housing Act, Q 3 (17 May 2004).
[5] See 24 CFR § 100.201; Virginia Code § 36-96.1:1.
[6] See 42 USC §3604(f)(2); Virginia Code §36-96.3(A)(9); 18 VAC 135-50-200 (C) and (D).
[7] See in general Joint statement from the Department of Housing and Urban Development and the Department of Justice, Reasonable accommodations under the Fair Housing Act, (May 17, 2004).
[8] See ID. at Q 7-8.
