Reasonable Accommodation Pool - Anxiety

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.