The McNary Estates Homeowners Association violated the Fair Housing Act by not accommodating a developmentally disabled boy, a Marion County judge ruled last week.
The Aug. 23 letter from Circuit Court Judge Joseph Guimond states the association was in error by barring a homeowner from installing privacy screens that he said prevents the boy from wandering off into the adjacent golf course. The 11-year-old child is the son of a homeowner’s girlfriend, who regularly stays at the house along with her son.
The Fair Housing Act bars discrimination against any person in their dwelling because of their handicap.
“Let’s say I’m in a wheelchair and I need a wheelchair ramp to get to my house,” said Norm Hill, a Salem attorney who represented plaintiff John Oswald. “And I have an association that says they don’t really like the look of wheelchair ramps” and subsequently bans them. “The only person that it impacts is the guy with the wheelchair. The law says you can’t do that … or at least you better have a real good reason why you’re gonna do that.”
Once the judgment is entered the association must accommodate the boy’s disability and pay the plaintiff’s court and attorney costs.
Richard Meneghello, the attorney representing the McNary HOA, declined comment.
Oswald, who lives next to the golf course within the association, had been attempting to install four-foot fabric privacy screens – which were larger and made of differing materials than what’s allowed under the association’s covenants, conditions and restrictions – since at least 2003, according to a joint statement of stipulated facts filed by both parties.
The association instructed Oswald to stop using the panels, which he did until 2007, when a woman and her son began staying at the home. The boy suffers from Down’s syndrome and attention deficit disorder and had wandered onto the golf course on at least two occasions, the statement reads, and was once hit by a golf ball. While the mother and son stayed at the home regularly – and he had a room there filled with clothing and personal belongings – their permanent residence was in an Oregon coastal town. Whether the Keizer home could be considered a “dwelling” for the boy was a key component of the decision, Guimond wrote in his letter.
“Clearly, the mother and son spend substantial time at Plaintiff’s house, and Plaintiff, his girlfriend, and her son all view the house as a place where the son would return,” Guimond wrote.
The statement says Oswald reinstalled the panels without the HOA’s permission and was fined $100 by a board member in Oct. 2008 “without further notice or hearing,” the statement reads.
Oswald appealed via a board hearing in March 2009, and the next month was told the association was “willing to work with him on an enclosure (like wrought iron) that does not violate the existing CC&R’s and Rules.”
However, Hill stated in court filings the height limitations on the suggested substitutes wouldn’t work, as the child would just step over them.
The reason for this particular rule was that views of the golf course could be inhibited, but the statement notes no one had complained about their view being obstructed. Their placement was such that only Oswald’s view could possibly be blocked, the statement reads.
Hill said the ruling was “the right result.
“The purpose of not having screens is not to block people’s view of the golf course and there was no evidence it was blocking anyone’s view but Mr. Oswald’s, it doesn’t cost the association anything it didn’t hurt anybody,” he added.
The suit named the homeowners’ association along with several board members.