Michigan FHC-Washtenaw Assisted Lawsuit Breaks New Legal Ground

A handicap discrimination lawsuit, Franke v. McKinley Properties, investigated and filed in Washtenaw County Circuit Court with the assistance of the Fair Housing Center of Washtenaw County, has resulted in a favorable ruling by Hon. Patrick J. Conlin that is likely to be of major importance for many persons with disabilities. Judge Conlin's ruling, denying the defendant's Motion for Summary Disposition, found that "the portion of the Michigan Handicappers' Civil Rights Act (MHCRA) requiring that a person shall accommodate a handicapper for the purposes of housing 'unless the person demonstrates that the accommodation would impose an undue hardship'," continues to apply even after the state passed legislation, in 1992, that prohibits "a person from refusing 'to permit, at the expense of the handicapper, reasonable modifications of existing premises occupied or to be occupied by the handicapper if those modifications may be necessary to afford the handicapper full enjoyment of the premises' " (emphasis added).

The case involved the refusal, by McKinley Properties, a Washtenaw County based property owner/management corporation, to pay for the installation of a ramp at Glencoe Hills Apartments to accommodate access for Natasha Franke, a wheelchair-user and the daughter of James and Janet Franke. McKinley Properties argued that both the language of the Federal Fair Housing Act and the 1992 amendment to the MHCRA placed responsibility for the payment of "reasonable accommodations" on the handicapped person.

Judge Conlin ruled that the earlier provisions of the Michigan law, requiring the landlord to make such an accommodation unless it was an "undue hardship" apply to "necessary" accommodations and remain in place, while the 1992 amendments provide an "extension" of the coverage of the MHCRA to make it possible for handicapped persons to pay for additional modifications that "are not essential to a person's access to, or use of, the premises, but make a person's living arrangements more comfortable." According to Judge Conlin, the question raised in the Franke case, of whether or not the "requested accommodation would impose undue hardship is a question of fact;" warranting denial of the Motion for Summary Disposition.

Shortly after the lawsuit was filed, with the assistance of FHC-Washtenaw and FHC-Detroit Cooperating Attorney Martin A. Scott, McKinley Properties agreed to install the requested ramp. The case continued over the issue of damages. Following Judge Conlin's ruling the parties agreed to a settlement that included the payment of $15,000 to the Frankes and several other modifications to the property in order to accommodate the special needs created by Natasha's disability.

This case is especially important because, prior to the filing of the Franke case in Washtenaw County Circuit Court, the Michigan Department of Civil Rights (MDCR) had not interpreted the "undue hardship" clause to take precedent over the Federal Fair Housing Act and the 1992 revised state law that requires the landlord to allow the tenant to make a reasonable accommodation at the tenant's expense. In fact, MDCR had dismissed the Frankes' 1989 complaint concerning the same matter, ruling that the expense for the accommodation should be covered by the tenants.

In 1993 the Frankes took their complaint to the Washtenaw County Fair Housing Center where the Center's Director, Pamela Kisch reviewed the Handicappers' Act, spotted the "undue hardship" language that had been generally ignored, consulted with FHC-Detroit's Legal Services Coordinator, Michael Olshan, and referred the Frankes to Attorney Scott. Part of the testimony produced by Attorney Scott was a statement by recently appointed MDCR Director, Dr. Nanette Reynolds, confirming that the Department's order dismissing the Franke case "did not reflect the duty to accommodate imposed by the MHCRA, and to that extent does not accurately reflect the present policy of the Michigan Department of Civil Rights."

Since the Franke case was filed several other similar complaints are being, or have been investigated by local FHCs, including a Wayne County Circuit Court case, Herzberg v. Plymouth Heritage Apartments (see Fair Housing News, Vol. 16, #2, April, 1994, page 3) filed by FHC-Detroit Cooperating Attorney Marcia Femrite. Congratulations to all involved for opening an important door to help accommodate the needs of persons with disabilities.

Reprinted from the Fair Housing News, Fair Housing Center Metro Detroit July, 1994