For Virginia community associations, requests for accessible parking to accommodate a disability come in many forms.  Requests range from asking for a designated handicap parking space to a parking space closer to one’s residence to curb cuts to reconfiguring and/or restriping a parking space.  These requests involve a change in a rule or policy of the association and/or a physical change or alteration to property. Whether a request is to 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.  With regards to accessible parking requests, it had been the requesting party for a change in a rule or policy (i.e.  a reasonable accommodation) or the association if a physical change (i.e. a reasonable modification).

Effective July 1, 2021, the distinction between whether a request for accessible parking is an accommodation or modification 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 a reasonable accommodation, even if it includes a physical modification.  This is significant because Virginia community associations will now be financially responsible for any and all costs associated with accessible parking requests.

As community associations well know, the VFHL[1] makes it unlawful for associations to refuse to make reasonable accommodations and modifications for persons with disabilities that may be necessary to afford such persons an equal opportunity to use and enjoy a dwelling.  The VFHL, as newly amended, provides a good opportunity to review some important considerations for handling accessible parking requests.

Who Qualifies as Having a Disability

The fair housing laws define a person with a disability to include individuals:

(a) with a physical or mental impairment that substantially limits one or more of such person’s major life activities;

(b) with a record of having such an impairment; or

(c) regarded as having such an impairment.[2]

A “physical or mental impairment” may include any of the following:

(i) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; or endocrine; or

(ii) any mental or psychological disorder, such as an intellectual or developmental disability, organic brain syndrome, emotional or mental illness, or specific learning disability.

“Physical or mental impairment” includes such diseases and conditions 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; drug addiction other than addiction caused by current, illegal use of a controlled substance; and alcoholism.[3]

The term “substantially limits” “suggests that the limitation is ‘significant’ or ‘to a large degree’.”[4]  The term “major life activities” includes caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.[5]

The fair housing laws provide legal protections to a person with a disability who resides or intends to reside in a dwelling, as well as any person associated with an individual who has a disability.[6] Given the broad list of conditions, diseases and disorders that qualify as disabilities, it should come as no surprise that some disabilities are observable while others are not apparent. This causes confusion for community associations and requires care in deciding how to handle a request for a reasonable accessible parking accommodation.

Information Community Associations Can Seek

Community associations are obligated to promptly review and consider a person’s accessible parking request.  A community association is put on notice of a request when a person with a disability, his or her family member, or a person acting on behalf of such person requests accessible parking to accommodate a disability. A request can be verbal or in writing, and failure to timely respond to an accessible parking accommodation may be deemed a denial of the request.  There is no magic language or required form that must be used if the request can be reasonably inferred.

There is no one-size-fits-all approach in reviewing such requests. Each request involves the specific facts and circumstances and must be determined on a case-by-case basis.  Community associations, however, are permitted to obtain certain information in order to determine whether an accessible parking request is necessary because of a disability.  The type and extent of information that a community association may request depends in part on whether the requester’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 whether the accessible parking request is reasonable and necessary are as follows:

  • Has the individual requested accessible parking because of 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 information such that it has 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 seeking the accommodation has a disability? Please note that community associations are not permitted to ask about the nature or extent of a person’s disability or to know the person’s diagnosis.
  • If the disability is not obvious and the need for the accessible parking request is also not readily apparent or known, has the person requesting the accommodation provided information which reasonably supports that the accessible parking accommodation is necessary with respect to the individual’s disability? This inquiry focuses on the nexus between the disability and the need for the accessible parking accommodation.[7]

As to the documentation that supports an accessible parking request, it may come from a Health Law professional or other third-party who has a professional or therapeutic relationship with the individual with a disability involving the provision of services related to the disability.  Since each request for an accessible parking accommodation is unique, the type of information and documentation that a community association may seek depends on the circumstances.  Community associations should consult with their legal counsel to determine what information and documentation may be sought.

When can a Request for Accessible Parking be Denied?

An accessible parking request to accommodate a disability can be denied in limited circumstances. Before doing so, community associations should consult with legal counsel.  Denying an accommodation request for accessible parking should not be taken lightly and could give rise to 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 not reasonable because it would create an undue financial and administrative burden on the community association or it would fundamentally alter the nature of the community association’s operations[8]. Lastly, before denying a request for accessible parking, a community association may be required to engage in an “interactive process” where the association and requester have further discussions related to the parking request.  Again, community associations should consult with their legal counsel before denying any request.

Additional Thoughts

In addition to the above considerations, Virginia community associations should review, adjust, and/or plan for budgets to include the potential cost of providing accessible parking accommodations.  Community associations should also consider adopting a fair housing reasonable accommodation and modification policy that will address not only requests for accessible parking, but also any other accommodation or modification requests the association may receive (e.g., assistance animals, installation of ramps, etc.).  Such a policy provides consistency and a structure for evaluating requests and can also include an accommodation/modification form for requesting individuals to 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 Virginia community associations are also subject.  Reference in this article to “fair housing laws” includes the VFHL as well as the FHA.

[2] See 24 C.F.R. § 100.201; Va. Code § 36-96.1:1.

[3] Id.

[4] See Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act, Q 3 (May 17, 2004).

[5] See 24 C.F.R. § 100.201; Va. Code § 36-96.1:1.

[6] See 42 U.S.C. §3604(f)(2); Va. Code §36-96.3(A)(9); 18 VAC 135-50-200 (C) and (D).

[7] See generally Joint Statement of 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.