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Gill Terrace Retirement Apartments, Inc. v. Johnson

Supreme Court of Vermont

October 6, 2017

Gill Terrace Retirement Apartments, Inc.
v.
Marie Johnson

         On Appeal from Superior Court, Windsor Unit, Civil Division

          Robert P. Gerety, Jr., J. Joanna K. Watts of Bennett & Zaikowski, P.C., Shelburne, for Plaintiff-Appellee.

          Jacob S. Speidel, Vermont Legal Aid, Inc., Springfield, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Dooley, J. (Ret.), Specially Assigned

          SKOGLUND, J.

         ¶ 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 procedure.

         ¶ 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[1] 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 1, 2014.

         ¶ 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 ...


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