#56-11, Decoverly I HOA v. Kim, (September 25, 2012) (Panel: Stevens, Caudle, Fornoroff)

The HOA filed a complaint that the homeowner had installed a "gazebo" or screened tent on her deck without permission.  The homeowner claimed in her defense that the "gazebo" was not as structure or superstructure that was regulated by the governing documents, and that even if it were, she had a right to install it in order to prevent mosquito bites to which she was very sensitive.

The evidence at the hearing showed that the HOA's rules prohibited the addition of "any superstructure on decks or patios" without prior approval.  The purpose of regulating the installation of superstructures on decks was to preserve the sight lines on the rears of the buildings.  The homeowner testified that she was extraordinarily sensitive to mosquito bites and that the neighborhood was infested with mosquitoes; and she believed that her reaction to mosquito bites was a medical condition entitling her to reasonable accommodations from her HOA.  The structure at issue is a semi-permanent tent with a steel frame approximately 7 to 8 feet tall, with screened sides.  On cross-examination by the HOA, the homeowner testified that although the mosquito bites were annoying to her, they did not interfere with any major life activity.

The panel held that the "gazebo" was a "superstructure" installed on the deck and regulated by the HOA.  The HOA had a reasonable basis for its decision to require the homeowner to remove the deck, which reason was founded in the overall architectural plan for the community. 

The panel further held that the homeowner's "discomfort from exposure to mosquitoes" does not interfere with or substantially limit her major life activities within the meaning of the relevant laws, and therefore it did not rise to the level that required the HOA to make a reasonable accommodation for her.

The panel ordered the homeowner to remove the "gazebo" and not to reinstall it without permission from the HOA.