January 7, 2014

Kendall condo association says no to senior citizen’s garden

A Kendall homeowner association says it can’t allow a resident to elevate her garden so she can tend it without hurting her back.

At 82 years old, Lois Mondres has been a vegan for almost two decades. For the past five years, she has grown her own broccoli, cabbage, lettuce, bok choy, tomatoes, and kale in front of her townhouse in the Kendalltown community.

This year, however, Mondres’ aching back made it too difficult for her to bend over to pull weeds and plant new crops. She asked her homeowners association if she could bring in a contractor to raise her garden three feet off the ground so she could tend it standing up. The answer was no.

Now, Mondres is trying to appeal to association leaders to change their minds, and if that fails, her daughter says the family may take legal action.

Mondres has lived in Kendalltown for about 25 years and said the garden in the front of her home is mainly barren now, with plastic covering much of the dirt and weeds that continue to sprout. She said she hasn’t been able to properly tend to it since last spring.

“Every time I go out and look and say, ‘God, I can’t stand it,’ ” Mondres said. “Now, it’s an eyesore.”

Mondres initially applied to the Kendalltown Homeowners Association in November, asking to add planting walls to her garden to raise it up. She was denied, applied again later in the month, and was denied again in December with a chance to appeal at the Jan. 21 board meeting.

“I have to have it raised up, and I won’t have to bend and I can grow, I can plant, I can tend, and I can weed,” Mondres said. “Times are changing. For board members or associations to refuse people the right to grow their vegetables — I think it’s wrong.”

Ed Levinson, the chairman of the HOA’s Architectural Approval Committee, said the denial was based solely on Kendalltown standards.

“I really wanted to help her, and then I looked at it and read the [association’s] laws and had to say no,” Levinson said. “We forbid any construction outside the houses.”

The strict enforcement of these sorts of aesthetic rules is not restricted to HOAs. A Miami Shores couple sued last November after village leaders, citing a zoning ordinance, ordered them to stop growing vegetables in their front yard or be hit with a $50-a-day fine.

Donna DiMaggio Berger, a lawyer who specializes in community associations, said conflicts over aesthetic rules are common. She said that these kinds of cases are typically best settled through some sort of compromise between the unit owners and the association.

“The most highly functional boards are those that listen to the community,” Berger said. “Just because something’s always been a rule doesn’t mean it can’t change.”

Mondres’ daughter, lawyer Flora Seff, said in a letter, that as she drove through Kendalltown she saw other developments outside homes that didn’t seem to be uniform. She also said in the letter that the HOA’s decision violated the federal Fair Housing Act as it relates to accommodating for residents with disabilities.

“If somebody needed a ramp put there, they would put a ramp there,” said Seff.

The Fair Housing Act was amended in 1988 and requires landlords to make “reasonable accommodations” for their tenants and renters with disabilities, which includes potentially modifying or changing rules. The act is also applicable to homeowners associations and, as it relates to disabilities, is applicable as long as the modifications are related to the tenant’s disability.

A townhouse owner in a community with an HOA would be considered a “tenant” under the act, according to the federal agencies that enforce the act.

The Americans with Disabilities Act defines a disabled person as someone with, “a physical or mental impairment that substantially limits one or more ‘major life activities.’ ”

Mondres, who has lived a vegan lifestyle for nearly two decades, hopes that the board will take some action before the Jan. 21 meeting. Until then, she has purchased organic food from stores to supplement her once homegrown supply. She has hired someone to pull out the weeds from her garden after her other attempts to work on her crops were too painful.

“I tried sitting on a stool, I even got knee pads, but it still was very hard on my body,” Mondres said. “I was out of commission for the rest of the day and sometimes for the next day and that’s not how I want to live.”

Levinson added that the HOA may be more receptive if she raises the garden in an area not visible from the street, such as her backyard. The HOA’s board president, Marga Doerr, said that she doesn’t anticipate the board approving Mondres’ appeal.

“You can get a real hodge-podge when you approve anything,” Doerr said. “You get into a mess if you approve one thing and not another, because it gets subjective.”

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