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Associations Have to Meet Requirements for the Disabled
Many associations in existence today were established long before disabled or handicapped persons had statutory rights regarding parking. Many complexes were designed with a bare minimum of guest spots that are minuscule by today’s standards. How do we address today’s problems with yesterday’s building codes?
The first question to be asked: "Is an association required to provide handicapped parking to those residents in need of accessible parking?"
Under the Illinois Accessibility Code, any facility which provides parking for employees or visitors must provide accessible parking. Accessible parking is defined by its size, striping and appropriate signage. However, an association that provides a minimum number of handicapped accessible parking spaces may also be required to provide additional spaces to handicapped residents.
Under the Fair Housing Act, it is unlawful to refuse to make reasonable accommodations to afford a handicapped person an equal opportunity to use and enjoy their dwelling [42 U.S.C. §3604(f)(3)(B)]. A recent case found that an apartment complex manager unlawfully discriminated against a resident for refusing to grant a request for an assigned parking space or an increase in the total number. [Jankowski Lee & Associates v. Cisneros, 91 F.3d 891, 7th Cir. 1996]. The test is always going to be whether there was a "reasonable accommodation" and the test of reasonableness as we know, is purely subjective.
In addition, an association could be found guilty of discrimination if they refuse to accommodate a disabled owner or resident. There are agencies at local, county, state and federal levels that have authority to enforce laws governing accessibility and each has different standards and different penalties.
Secondly, what does an association do when all parking spaces are individually owned by each unit owner and are conveyed with the title in any transfer of ownership? Obviously, an association cannot take property from an owner without due process of law. An owner’s parking space under certain circumstances is no different than his apartment. However, that does not mean that an association could not act as an advocate for the handicapped owner and attempt to negotiate a "swap," even on a temporary basis, to accommodate an owner in need with someone who has a more accessible space, or one that could be expanded. This is an example of acting "reasonably."
Third, does an association have an obligation to guarantee handicapped parking to non-residents, guests and visitors? Local zoning codes and ordinances govern these situations, where formulas are established requiring a minimum number of handicapped access spaces per total number. But what if an association established over 20 years ago has little or no guest parking?
A property cannot be made to guarantee "guest" accessibility when in practicality there is none. Associations that are hampered by inadequate parking are effectively grandfathered. CAVEAT – when an association, even with limited parking, chooses to re-stripe to create more spaces, it has lost all protections of "grandfathering" and must comply with the current codes and ordinances.
The most important factor in determining a legal and enforceable parking policy is to consult with your attorney, become fully familiar with the legal requirements and have a policy of making reasonable accommodations as part of the Board’s overall philosophy.
With special thanks to Pamela J. Park of my firm for thoroughly researching this topic.