Gill Terrace Retirement Apartments, Inc.
Appeal from Superior Court, Windsor Unit, Civil Division
P. Gerety, Jr., J. Joanna K. Watts of Bennett &
Zaikowski, P.C., Shelburne, for Plaintiff-Appellee.
S. Speidel, Vermont Legal Aid, Inc., Springfield, for
PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and
Dooley, J. (Ret.), Specially Assigned
1. Tenant Marie Johnson appeals the trial court's
conclusion that she violated two material terms of her
residential rental agreement: a "no-smoking" policy
and a "no pets" policy. We affirm based on the
no-pets violation. The court did not err in concluding that
tenant was not entitled to a reasonable accommodation for a
specific emotional support animal. Given our holding, we find
it unnecessary to address whether the court erred in finding
that tenant violated the no-smoking policy.
2. Following a final hearing in this eviction action, the
court made the following findings. Landlord owns residential
housing complexes with apartments for disabled senior
residents. The housing complex in question receives federal
funding assistance under Section 8 of the Housing Act of
1937, codified as 42 U.S.C. § 1437f. The U.S. Department
of Housing and Urban Development (HUD) administers the
programs authorized by Section 8, including the rental
assistance received by landlord. Tenant was a resident of one
of the apartments since 2002.
3. The lease governing tenant's unit prohibited residents
from keeping pets unless the landlord consented or the tenant
qualified for a reasonable accommodation for a person with a
disability. Those who qualified for a reasonable
accommodation were required to seek approval through a set
4. At some point after October 1, 2009, tenant's son and
his dog, Dutchess, lived with tenant in tenant's
apartment. Dutchess never attacked another person or pet, but
she did display aggressive behavior towards other dogs and
people-including lunging, flaring up, rearing on her hind
feet, and baring her teeth. In addition, the dog often went
"crazy" when other residents or dogs passed by
tenant's apartment. Tenant told one resident that
Dutchess was trained as a guard dog, and she asked another
resident to adjust her dog's walk schedule to avoid
Dutchess. Some tenants stayed indoors if they thought that
Dutchess was outdoors, and some expressed fear of the dog.
5. In December 2013, tenant's son moved out of the
apartment, but Dutchess stayed. In January 2014, landlord
questioned tenant about the dog. Tenant explained that she
had a doctor's note recognizing her need for an emotional
support animal as a result of her disability, but she did not
supply the note. At the time, according to tenant, she was
receiving medical treatments and, as a result, she was unable
to control Dutchess. Because she could not take the dog out,
one of her children took the dog out instead.
6. In February 2014, landlord sent a letter to tenant
requiring her to rectify three lease violations including
possessing an unauthorized pet and smoking in her apartment.
The alleged smoking violation relied on an addendum to the
lease that prohibited smoking in all indoor areas including
the apartment units, as well as common areas, entry areas,
and laundry room. Smoking was also prohibited outdoors,
except for the designated, sheltered smoking area. The lease
addendum and new smoking policy became effective on January
7. Two months after the February 2014 notice, the landlord
sent tenant a notice of termination of tenancy. The notice
terminated tenant's lease as of May 25, 2014 for
violating the "no-smoking" and "no-pets"
policies. Following this notice, an informal meeting occurred
between tenant, landlord's manager, and landlord's
attorney. At the meeting, tenant maintained her need for
Dutchess as an emotional support animal and that, as a
result, a reasonable accommodation for her disability should
be made to the "no-pets" policy. Landlord's
attorney delivered to tenant the paperwork required to submit
a request for a reasonable accommodation. Tenant asserts that
she did not receive the paperwork, and therefore, she could
not complete and submit it. After this meeting, she kept
Dutchess and continued to use e-cigarettes in her apartment.
8. On June 9, 2014, landlord served tenant with process to
begin this eviction action. At this point, tenant submitted a
request to keep her dog under the pet policy exception for
reasonable accommodation. With her request, tenant provided a
note from a health professional that read: "I believe
[tenant] should have a pet companion because she has chronic
pain-which leads to poor sleep and [increased] anxiety-I
think having her pet in home helps with that
anxiety-therefore she can sleep. This is not however a
service animal but a therapeutic recommend [sic]."
9. In an August 8, 2014 letter, landlord approved
tenant's request for an assistance animal as a reasonable
accommodation, but did not approve of Dutchess as the
specific animal because of the dog's hostility,
complaints from other residents, and tenant's inability
to restrain the dog. In addition to the residents'
complaints, landlord also relied on a hypothetical increase
in its insurance and a June 8, 2014 ...